;*  i- 


I     i 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


2? 


/. 


I  Q       Itt  12a    1125 


1.1 


US  — 

■tt  Itt   12.2 


'^  II  J& 

11^  11^  U4 


C 


HiotDgraphic 

Sciences 
Corporation 


23  WiST  MAIN  STriET 

WEBSTM.N.Y.  USM 

(71«)  •72-4503 


\ 


4 


•s? 


<^ 


;\ 


z 


^ 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiq 


ues 


Technical  and  Bib'iographic  Notas/Notas  tachniquas  at  bibliographiquaa 


Tha  Instituta  has  attamptad  to  obtain  tha  bast 
origins  i  copy  availabia  for  filming.  Faaturas  of  this 
copy  which  may  ba  bibliographically  uniqua, 
which  may  altar  any  of  tha  imagas  in  tha 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checked  below. 


D 


D 


D 
D 
D 


D 


D 


Coloured  covers/ 
Couverture  de  couleur 


I      I    Covers  damaged/ 


Couverture  endommagie 


Covers  restored  and/or  laminated/ 
Couverture  restaur^  et^ou  pelliculie 


I      I   Cover  title  missing/ 


Le  titre  de  couverture  manque 


□   Coloured  maps/ 
Cartas  gtographiques  en  couleur 


Coloured  ink  (i.e.  other  than  blue  or  black)/ 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 


Coloured  plates  and/or  illustrations/ 
Planches  et/ou  illustrations  en  couleur 


Bound  with  other  material/ 
Relii  avac  d'autres  documents 


r*7]    Tight  binding  may  cause  shadows  or  distortion 


along  interior  margin/ 

La  re  liure  serrie  peut  causer  de  I'ombre  ou  de  la 

distortion  le  long  de  la  marge  intArieure 

Blank  leaves  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certaines  pages  blanches  ajouties 
lors  d'une  restauration  apparaissent  dans  la  texte, 
mais,  lorsque  cela  Atait  possible,  ces  pages  n'ont 
pas  it6  filmtos. 

Additional  comments:/ 
Commentaires  suppldmentaires; 


L'Institut  a  microf  llmA  le  meilleur  exemplaire 
qu'il  lui  a  4t4  possible  de  se  procurer.  Les  details 
de  cet  exemplaire  qui  sont  peut-Atre  uniques  du 
point  de  vue  bibliographique,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  mAthoda  normale  de  filmage 
sont  indiqute  ci-dessous. 


I      I   Coloured  pages/ 


D 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  filmi  au  taux  de  rMuction  indiquA  ci-dessous. 


Pages  de  couleur 

Pages  damaged/ 
Pages  endommagias 

Pages  restored  and/oi 

Pages  restaur^es  et/ou  pelliculAes 

Pages  discoloured,  stained  or  foxet 
Pages  dicolortes,  tachetdes  ou  piqu^es 

Pages  detached/ 
Pages  ddtachies 

Showthroughy 
Transparence 

Quality  of  prir 

Quality  in6gale  de  {'impression 

Includes  supplementary  matarii 
Comprend  du  materiel  suppl^mentaire 

Only  edition  available/ 
Seule  Edition  disponlble 


I — I  Pages  damaged/ 

I      I  Pages  restored  and/or  laminated/ 

r~T|  Pages  discoloured,  stained  or  foxed/ 

I      I  Pages  detached/ 

r~7]  Showthrough/ 

r~7|  Quality  of  print  varies/ 

l~n  Includes  supplementary  material/ 

I     I  Only  edition  available/ 


Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partieilement 
obscurcies  par  un  feuillet  d'errata,  une  peiure, 
etc.,  ont  6t6  filmdes  d  nouveau  de  fapon  A 
obtenir  la  meilleure  image  possible. 


10X 

14X 

18X 

22X 

26X 

30X 

v/ 

12X 

16X 

20X 

24X 

28X 

32X 

"^^      maiffm^ 


Th«  copy  fllmad  h«r«  has  b—n  raproducMl  thank* 
to  tha  ganarosity  of: 

Saminary  of  Quebec 
Library 


L'axamplaira  filmA  f ut  raproduit  grica  A  la 
ginAroaiti  da: 

Stminaira  de  QuAbac 
BiMiothkiua 


Tha  imagaa  appaaring  hara  ara  tha  baat  quality 
poaaibia  considaring  tha  condition  and  laiEpibility 
of  tha  original  copy  and  in  kaaping  with  tha 
filming  contract  spacificationa. 


Laa  imagaa  suivantaa  ont  4tA  raproduitaa  avac  k 
plus  grand  soin.  compta  tanu  da  la  condition  at 
da  la  nattatA  da  l'axamplaira  film*,  at  an 
conformity  avac  las  conditions  du  contrat  da 
fiimaga. 


Original  copiaa  in  printad  papar  covara  ara  filmad 
baginning  with  tha  front  covar  and  anding  on 
tha  last  paga  with  a  printad  or  iiiuatratad  impraa- 
slon,  or  tha  bacic  covar  whan  approprlata.  All 
othar  original  copies  ara  filmad  baginning  on  tha 
first  paga  with  a  printad  or  iiiuatratad  impras- 
sion,  and  anding  on  tha  laat  paga  with  a  printad 
or  iiiuatratad  Impraasion. 


Laa  axamplairaa  origlnaux  dont  la  couvartura  an 
papiar  aat  ImprimAa  sont  filmte  sn  commanfant 
par  la  pramiar  plat  at  an  tarminant  soit  par  la 
darnlAra  paga  qui  comporta  una  amprainta 
d'Impraaaion  ou  d'illuatration.  soit  par  la  sacond 
plat,  aalon  la  caa.  Toua  laa  autras  axamplairaa 
origlnaux  sont  flimis  an  commandant  par  la 
prami4ra  paga  qui  comporta  una  amprainta 
d'imprassion  ou  d'iliustration  at  an  tarminant  par 
la  darniira  paga  qui  comporta  una  talla 
amprainta. 


Tha  laat  racordad  frama  on  aach  microficha 
shall  contain  tha  symbol  —^(moaning  "CON- 
TINUED"), or  tha  symbol  V  (moaning  "END"), 
whichavar  appliaa. 


Un  daa  symboiaa  suivanta  apparattra  sur  la 
damlAra  Imaga  da  chaqua  microficha,  salon  la 
caa:  la  aymbola  -^  signifia  "A  SUiVRE".  la 
symbols  V  signifia  "FIN". 


Maps,  piatas,  charts,  ate,  may  ba  filmad  at 
diffarant  raduction  ratloa.  Thosa  too  larga  to  ba 
antlraiy  included  in  ona  axposura  ara  filmad 
baginning  in  tha  uppar  laft  hand  corner,  laft  to 
right  and  top  to  bottom,  aa  many  framaa  aa 
raquirad.  Tha  following  diagrama  illustrata  tha 
method: 


Laa  cartee,  pianchea,  tableaux,  etc..  peuvent  Atre 
fiimAe  A  dee  taux  da  rAductlon  diffArents. 
Lorsque  le  document  est  trop  grand  pour  Atre 
reproduit  en  un  seul  cilchA,  il  est  filmA  A  partir 
da  I'angia  supArieur  gauche,  de  gauche  A  droite, 
et  de  haut  en  bee,  en  prenant  le  nombre 
d'imagea  nAcaasaira.  Lee  diagrammes  suivanta 
iiiuatrent  la  mAthode. 


:    1  ''-^ 

'",  -               ■■■■--■ 

: » 

^  ■■    :"'  -  .  ? 

1 

2 

3 

4 

5 

6 

?' 


v,y 


W: 


2qr  ^  "   ARGUMENT       ; 


09 


/ 


ROBERT    J.   WALKER,   ESQ. 


BEFORE 


THE  SUPREME  COURT  OF  THE  UNITED  STATES, 


ON  THE 


MISSISSIPPI  SLAVE  QUESTION, 


AT 


JANUARY   TERM,    1841. 


INVOLVING  THE  POVV^ER  OF  CONGRESS  AND  OF  THE  STATES 
TO  PROHIBIT  THE  INTER-STATE  SLAVE  TRADE. 


l^^^^l/lMWM- 


PHILADELPHIA: 

PRINTED  BY  JOHN  C.  CLARK,  60  DOCK  STREET. 

184L 


■Mm 


""•i^Miw,.,,, 


:-»;■-— >\mfv»  Jiawr*»i»*« 


atilliii 


mM\'- 


^.* 


ARGUMENT. 


Mr.  Walker  said,  he  appeared  only  for  Moses  Groves,  of  Louisiana,  whose  de- 
fence was  meritorious  as  well  as  legal.  He  was  a  mere  accommodation  endorser, 
who  had  been  made  a  party  to  this  illegal  contract,  without  his  knowledge  or  con- 
sent, through  an  endorsement  in  blank  for  the  accommodation  of  the  drawer  of  the 
note.  This  is  evident  from  the  record  ;  but  as  the  question  resolved  ilself  into  a 
decision  upon  the  validity  of  the  contract,  the  following  agreement  was  filed  in  the 
case  below.  "  The  case  is  to  be  defended  solely  on  the  question  of  the  validity 
and  legality  of  the  consideration  for  which  the  notes  sued  on  were  given.  It  is 
admitted  that  the  slaves,  for  which  said  notes  were  given,  were  imported  into  Mis- 
sissippi as  merchandise,  and  for  sale,  in  tiie  year  1835, 1836,  by  plaintiff,  but  with- 
out any  previous  agreement  or  understanding,  express  or  implied,  between  plaintiff 
and  any  of  the  parties  to  the  note ;  but  for  sale,  generally,  to  any  person  who  might 
wish  to  purchase.  The  slaves  have  never  been  returned  to  plaintiff,  nor  tendered 
to  him  by  any  of  the  parties  to  the  notes  sued  on.''  It  must  be  observed,  that  it  is 
not  alleged  or  pretended  that  my  client,  Moses  Groves,  ever  had  the  possession  or 
control  of  any  of  these  slaves,  or  that  it  ever  was  in  his  power  to  tender  or  return 
them.  The  notes  sued  on  were  dated  December  20,  1836,  and  were  given  and 
made  payable  in  Mississippi;  and  the  validity  of  the  contract  depends  upon  the 
following  clause  in  the  amended  constitution  of  Mississippi,  adopted  October  26, 
1832.  That  clause  is  in  these  words — "  Tiie  introduction  of  slaves  into  this  state 
as  merchandise,  or  for  sale,  shall  be  prohibited  from  and  after  the  first  day  of  May, 
1833 :  Provided,  That  the  actual  settler  or  settlers  shall  not  be  prohibited  from 
purchasing  slaves  in  any  State  of  this  Union,  and  bringing  them  into  this  State  for 
their  own  individual  use,  till  the  year  1845." 

The  question  arises  only  on  the  first  branch  of  this  clause;  which,  it  is  said,  is 
but  a  mandate  to  the  legislature  to  prohibit  the  introduction  of  slaves  for  sale  from 
and  after  the  Ist  of  May,  1833.  But  the  clause  is  not  directed  to  the  legislature, 
and  is  not  a  mandate  in  substance  or  in  form,  but  an  absolute  prohibition,  ope- 
rating proprio  vigore.  It  requires  no  legislation  to  give  it  efficacy  to  avoid  this 
contract ;  and  none  such  could  prevent  or  postpone  its  operation.  To  declare  it  a 
mandate,  is  to  interpolate  into  this  provision  words  of  solemn  import.  No  court 
can  introduce  into  a  law,  or  exclude  from  it,  words  not  used  by  the  legislature; 
unless  it  be  clearly  necessary  to  give  effect  to  the  law,  ut  res  magis  valeat  quam 
pereat.  Now  the  clause — "  The  introduction  of  slaves  into  this  state  as  merchan- 
dise, or  for  sale,  shall  be  prohibited  from  and  af\er  the  first  day  of  May,  eighteen 
hundred  and  thirty -three,"  is  complete  of  itself,  as  a  prohibition,  operating  by  force 
of  the  constitution  itself,  from  and  after  the  day  designated  by  that  instrument;  and 
to  change  it  into  a  mandate,  the  woids  "  by  the  legislature"  must  be  interpolated. 
It  was  an  operative  fundamental  law,  ordained  by  the  sovereign  power  of  the  state, 
which  called  the  legislature  itself  into  being ;  and  though  that  body  might  prevent 
the  violation  of  this  prohibition  by  more  efTectual  guards  and  penalties,  as  thej 


tt 


Grants  et  at.  v.  Slaughter. 


- 


have  done  in  1837;  yet  as  the  prohibition  could  not  be  repealed  by  the  legislature 
by  positive  enactments,  neither  would  their  omission  to  act,  expunge  this  prohi* 
bition  from  the  fundamental  law.  This  Court,  tlirough  Chief  Justice  Marshall, 
have  said,  that  the  nature  of  a  constitution  "requires  that  only  its  great  outlines 
should  be  marked,  its  important  objects  designated,  and  the  minor  ingredients 
which  compose  those  objects  be  deduced  from  the  objects  themselves."  "  The 
constitution  unavoidably  deals  in  general  language;"  it  do«  '  not  " enumerate  the 
means"  by  which  its  provisions  shall  be  carried  into  operation.  4  Wheat.  407,  8. 
1  Wheat.  326.  Baldwin's  Const.  Views,  99,  100,  192.  So  also  the  constitution  of 
Missisaippi  contained  only  the  important  objects  and  great  outlines  of  the  govern- 
ment, wr.lten  and  ordained  by  the  people  acting  in  their  highest  sovereign  capa- 
city, by  their  delegates  in  convention  assembled ;  and  all  the  details  of  legislation 
were  lef\  to  that  branch  and  department  of  the  government  to  whom  that  duty  ap- 
propriately belonged.  The  legislature,  in  regarding  the  objects  designated,  might 
well  surround  a  constitutional  interdict  with  appropriate  penalties ;  but  they  could 
not  render  it  inoperative,  either  by  positive  or  negative  action ;  and  whatever 
course  they  might  pursue,  all  laws  and  contracts  repugnant  to  the  prohibition 
would  be  void. 

When  was  this  prohibition  of  the  constitution  to  go  into  effect  ?  That  instru- 
ment assigns  the  day  ;  it  in  "  from  and  after  the  first  day  of  May,  1833 ;"  not  after 
the  1st  of  May,  1833,  hat  from  and  after  that  day  and  no  other.  From  and  after  a 
day  specified,  fixes  absolutely  the  very  day  when  this  prohibition  would  commence 
to  operate ;  and  to  postpone  its  operation  to  any  future,  uiiknown,  indefinite  period, 
at  the  discretion  of  the  legislature,  would  be  to  disregard  the  plain  language  and 
manifest  intent  of  the  constitution.  Nor  were  these  words,  "  from  and,"  after  the 
day  fixed,  introduced  by  accident.  On  the  ontrary,  the  clause,  as  originally  pro- 
posed, was,  "  the  introduction  of  slaves  into  this  state  as  mercliandise  shall  be  pro- 
hibited  after  the  day,"  &c.,  page  57  of  Journal;  and  the   provision  was 

amended  subsequently  by  introducing  the  words  '^from  and"  after,  &c.  Why 
thus  cautiously  designate  the  very  dny  for  the  commencement  of  the  operation  of 
this  prohibition,  unless  it  was  certainly  to  go  into  effect  on  lliat  very  day,  by  force 
of  the  constitutional  interdict?  To  postpone,  then,  the  operation  of  this  prohibition 
to  any  day  subsequent  to  that  named  in  the  constitution,  is  to  expunge  the  time 
altogether,  and  leave  it  dependent  upon  the  fluctuating  will  of  the  legislature, 
obeying  or  disregarding,  at  pleasure,  this  constitutional  provision,  and  giving  or 
refusing  operation  to  it,  from  time  to  time,  by  enacting  or  repealing  laws  upon  the 
subject,  and  thus  changing  a  fixed,  permanent,  established,  fundamental  law,  into 
a  mere  directory  provision,  operative  or  inoperative,  as  the  legislature  might  act  or 
refuse  to  act,  or  i-epeal  its  action  upon  the  subject.  But  this  provision  was  not 
only  designed  to  operate  of  itself  from  a  day  fixed  and  certain,  but  unchangeably 
through  all  time  to  come,  or  to  be  ciianged  only  by  the  same  sovereign  power 
which  framed  the  constitution.  The  convention  have  said,  "the  introduction  of 
slaves  for  sale  shall  be  prohibited,"  &c.  This  language  is  general;  it  is  addressed 
to  every  one,  and  to  all  the  departments  of  government;  and  why  should  it,  by 
implication  or  interpolation,  be  limited  to  a  direction  to  the  legislature.'  It  was 
competent  for  the  convention  itself  to  prohibit  this  trade ;  and  if  they  have  used 
language  which,  in  a  statute,  all  admit  would  be  a  prohibition,  why  shall  it  receive 
a  different  construction  in  the  organic  law.'  Is  a  state  constitution  merely  a  man- 
date to  the  legislature?  Is  it  so  in  its  prohibitions,  and  especially  in  those  which 
are  contained  in  general  provisions,  as  in  this  case,  and  not  in  the  article  creating 
the  legislative  department,  and  assigning  its  appropriate  powers  and  duties?  li* 
this  construction  be  adopted  by  implication,  in  regard  to  other  clauses  e  ally  im- 
perative in  the  constitution  of  Mississippi,  it  will  be  rendered,  in  many  oi  its  most 
important  provisions,  absurd  and  incongruous,  nugatory  and  repugnant. 

These  words  "from  and  after  the  Ist  of  May,  1833,"  have  received  a  settled 
construction  by  this  court,  in  9  Cranch,  104,  119,  where  they  say  "The  act  1st 
July,  1812,  provided  that  an  additional  duty  of  100  per  cent,  upon  the  permanent 
duties  now  imposed  by  law,  &c.,  shall  be  levied  and  collected  upon  all  goods, 
wares  and  merchandise  which  shall,  from  and  after  the  passing  of  this  act,  be  im- 


cl 
tl 


Grove$  et  ah  v.  Slaughter, 


iU 


•  lefislature 

•  this  prohi- 
!e  Morthall, 
eat  outlines 
ingredients 
'■•"     "The 
mmerate  the 
eat.  407,  8. 
Btitution  of 
he  govern- 
•eign  capa- 
legislation 

»t  duty  ap. 
led,  might 
they  could 
whatever 
>rohibition 

>at  inatru- 
'  not  after 
nd  after  a 
ommence 
te  period, 
uage  and 
after  the 
'ally  pro- 
II  be  pro- 
"on  was 
'■      Why 
ration  of 
by  force 
>hibition 
he  time 
islature, 
ving  or 
pon  the 
w,  into 
t  act  or 
'as  not 
geably 
power 
tion  of 
ressed 
it,  by 
i.  was 
)  used 
'ceive 
man- 
vhich 
atinor 

?     U 

r  im- 
inost 

ttled 
t  Ist 
lent 
ods, 
im- 


ported into  the  United  States  from  any  foreign  port  or  place.  It  is  contended 
that  thifl  statute  did  not  laite  eil'ect  until  the  2d  day  of  July;  nor  indeed,  until  it 
was  formally  promulgated  and  published.  We  cannot  yield  assent  to  this  con- 
struction,"— and  the  court  exacted  the  double  duties  upon  an  importation  on  tht 
\st  July.  Here  it  is  decided,  that  thecie  words,  from  and  after,  included  t'.ie  day 
named,  and  such  was  the  settled  legal  construction  when  the  words  were  used  in 
our  constitution  ;  and  in  such  cases  it  is  conceded,  that  the  construction  is  adopted 
with  the  words.  Why  then  introduce  the  word  from  by  an  amendment  in  this 
case,  unless  the  prohibition  was  to  commence  (m  that  very  day  navted,  and  in  all 
time  thereafter.''  Thus  to  designate  by  an  amendment  the  very  day  when  this  pro- 
bitition  "  sliall,"  commence  to  operate,  clearly  proves  that  this  should  be  an  abso- 
lute prohibition;  and  never  to  put  it  into  operation  unless  the  legislature  acted 
upon  the  subject,  or  at  sucli  indetinite  and  distant  period  as  they  might  designate, 
is  to  defeat  the  meaning  of  the  constitution.  Here  then  the  precise  date  is  fixedj  and 
the  words  are  shall  be  prohihittd.  from  and  after  that  date.  In  2  Wheat.,  148,  152, 
153,  it  was  decided  by  this  court,  that  "under  the  Embargo  Act  of  the  22d  Dec. 
1807,  the  words  'a/t  embargo  shall  be  laid'  not  only  imposed  upon  the  public  officers 
the  duty  of  preventing  the  departure  of  registered  or  sea-letter  vessels  on  a  foreign 
voyage,  but,  consequently  rendered  them  liabln  to  forfeiture  under  the  supplemen- 
tary act  of  the  9th  Jan.  1808."  In  this  case  the  court  said,  this  vessel  was  *'  libel- 
led for  a  violation  of  t.he  Embargo  Act  of  the  22d  Dec.  1807,  and  the  Supplemen- 
tary Act  of  the  9th  Jan.  1808,  the  former  of  which  enacts  '  that  an  embargo  shall 
be  laid  on  all  ships  and  vessels  in  the  ports  of  the  United  States,  bound  on  a  fo- 
reigii  voyage,'  and  the  latter  forfeits  the  vessel  tiiat  shall  proceed  to  any  foreign  port 
or  place  '  contrary  to  the  provisions  of  this  act,  or  of  the  act  to  which  this  is  a 
supplement.'"  "Was  then  the  sailing  to  a  foreign  port,  a  prohibited  act  under 
the  embargo  law,  to  a  registered  or  sea-letter  vessel  .■*  If  so,  the  commission  of 
such  an  act  was  a  cause  of  forfeiture  under  the  act  of  Jan.  9,  1808.  And  here 
the  only  doubt  is,  whether  the  words  'an  embargo  shall  be  laid,'  operate  any  fur- 
ther than  to  impose  a  duty  on  the  public  officers  to  prevent  the  departure  of  a  regis- 
tered or  sea-letter  vessel  on  a  foreign  voyage.  The  language  of  the  act  is  certain- 
ly not  very  happily  chosen;  but  when  we  look  into  the  definition  of  the  word  em- 
bargo, we  find  it  to  mean  '  a  prohibition  to  sail ;'  substituting  this  periphrasis  for 
the  word  embargo,  it  reads  'a  prohibition  to  sail  shall  be  imposed,  &.c.,'  or  in  other 
words, '  such  vessels  shall  be  prckibited  to  sail,'  which  words,  had  they  been  used 
in  the  act,  would  have  left  no  scope  for  doubt." 

Here  too,  the  question  raised  is  whether  the  words  "  shall  be  prohibited," 
operate  any  further  than  "  to  impose  a  duty"  on  the  legislature  to  "  prevent"  the 
introduction,  or  amount  to  a  prohibition.  Now  the  words  "  an  embargo  shall  be 
laid"  operated  in  presenti,  as  an  embargo,  and  not  merely  as  directory  to  the  pub- 
lic officers ;  the  words  "  a  prohibition  to  sail  shall  be  imposed,"  operated  in  the  like 
manner,  as  also  did,  beyond  all  doubt,  the  words  "  such  vessels  shall  be  prohibited 
to  sail."  Tbe  words  then  shall  be  prohibited  operated  as  a  prohibition,  and  in  presen- 
ti, and  if  the  words  shall  be  prohibited  to  introduce  would  so  operate,  what  differ- 
ance  is  there  in  the  words  the  introduction  shall  be  prohibited?  The  case  then  is 
clear  in  point,  and  that  too,  on  the  construction  of  a  pennl  statute  inflicting  a  for- 
feiture ;  and  the  construction  of  these  words  shall  be  prohibited  had  thus  been  set- 
tled when  our  convention  adopted  them  in  1832.  And  here  it  was  a  traffic  that 
was  prohibited.  Now  what  is  the  meaning  of  the  terms  prohibited  traffic?  It  is 
an  unlawful  traffic,  for  the  past  participle  is  thus  repeatedly  used  as  an  adjective. 

The  clause  would  then  read,  the  introduction  of  slaves  for  sale,  shall  be  unlaw- 
ful from  and  after  the  1st  of  May,  1833,  and  the  proviso  would  then  read,  Provided, 
that  it  shall  not  be  unlawful  for  the  actual  settler  or  settlers  to  purchase  slaves,  in 
any  state  in  this  Union,  and  bring  them  into  this  state  for  their  own  individual 
use,  until  the  year  1845.  But  if  the  proviso,  from  the  different  terms  used,  and 
failure  to  designate  the  day  upon  which  the  prohibition  should  commence  to 
operate,  was  susceptible  of  a  different  construction,  it  would  only  render  still  more 
imperative  the  main  provision,  by  which  the  traffic  was  prohibited  from  and  after 
the  day  named  in  the  constitution. 


hr 


Groves  et  al.  v.  Slaughter. 


Grants  of  legiilative  power  mandatory  and  permiiiive,  frequently  occur  in  the 
conatitulion,  and  the  convention  well  knew  how  to  make  such  grants,  and  to  dii- 
tinguiah  between  those  which  were  mandatory  or  permissive.  The  first  section 
contains  three  distinct  grants  of  power,  permissive  to  the  legislatdre,  in  relation  to 
slaves;  and  one  of  these  was  a  power  to  proiiibit  tlie  introduction  of  a  certain  de- 
scription of  slaves  This  power  to  proiiibit  the  introduction  of  slaves  of  one  class 
by  all  persons,  and  the  positive  prohibition  in  this  case  of  the  introduction  of  slaves 
as  merchandise,  demonstrates,  thut  thu  convention  well  understood  the  diiference 
between  a  power  to  prohibit,  and  an  absolute  prohibition.  Throughout  the  same 
instrument  numerous  grunts  of  power  occur  mandatory  to  the  legislature.  Thus 
in  the  2()th  sect. on  of  the  4lh  article,  it  m  declared,  that  "the  legislature  shall  pro- 
vide by  law  for  iletermining  contested  electioiisof  judges  and  other  officers."  The 
10th  section  of  the  7th  article,  declares  "  the  legislature  shall  direct  by  law  in  what 
manner,  and  in  what  courts  suits  may  be  brought  against  the  state,"  These  and 
many  other  grants  in  the  constitution  are  niniidatory  injunctions  to  the  legislature 
to  pass  certain  laws.  Whenever,  then,  tlie  convention  designed  to  address  the  legis- 
lature in  the  language  either  of  permiHtiion  or  command,  t'  y  used  invariably  ap- 
propriate words  for  that  purpose,  and  dittering  entirely  I  .i  those  provisions  or 
prohibitions  designed  to  operate  by  their  own  authority  :  .id  in  this  as  in  many 
other  similar  cases,  operating  by  virtue  of  the  constitutimi  itself.  If  the  terms  in 
the  constitution  "  shall  he"  are  mere  directions  to  tl"i  legislature,  mandatory  or 
permisiiive,  nnd  inoperative  until  the  legislature  shall  have  obeyed  the  constitu- 
tional injunction,  then  much  the  most  important  part  of  the  constitution,  which 
went  into  operation  immediately,  would  have  remained  suspended  until  the  legis- 
lature acted  upon  the  subject.  Thus  the  1st  section  of  the  2d  article  declared,  that 
"the  powers  of  the  government  of  the  state  of  Mississippi  shull  be  divided  into 
three  distinct  departments;"  thus  seeming  to  contemplate  a  future  distribution  of 
these  powers;  yet  we  know  that  this  division  was  made  and  operated  by  virtue  of 
the  constitution  itself.  Section  9,  article  1 ,  declares :  "  The  people  shall  be  secure  in 
their  persons,  houses,"  «&c.  Section  17,  "  All  persons  shall,  before  conviction,  be 
bailable,"  &c.  Section  2,  article  3,  "  Electors  shall  in  all  cases,  e.\cept,  «&c.,  be 
privileged  from  arrest  during  their  attendance  on  elections."  Section  t;  "  The 
legislative  power  of  this  st-xte  shall  be  vested  in  two  distinct  branches,"  &c.  Sec- 
tion 19,  "  Senators  and  representatives  shall  in  cases  except,  &c.,  be  privileged 
from  arrest,"  &c.;  not  by  future  lesrisiation,  but  by  this  provision  of  the  constitu- 
tion. Section  1,  article  5,  "  The  chief  executive  power  of  this  state  shall  be  vested 
in  a  governor,"  &c.  Section  2,  article  6,  "  Ail  impeachments  shall  be  tried  by 
the  senate."  "The  governor,  &c.,  shall  be  liable  to  impeachment."  In  all  these 
cases,  and  throughout  this  constitution,  the  terms  a7)«//  br.,  operate  proprio  vigore. 
The  terms  "shall  be  seciire,"  "shall  be  bailable,"  "shall  be  privileged,"  "  shall  be 
vested,"  mean  are  secure,  are  bailable,  are  privileged,  are  vested.  This  is  the  set- 
tled meaning  of  these  terms  shall  be,  in  tiie  constitution;  they  operate  propiio 
vigore,  and  should  receive  the  same  construction  in  the  clause  now  under  consi- 
deration. 

The  terms  "shall  be"  operated  immediately  in  all  these  clauses,  and  present  a 
much  stronger  case  than  the  one  now  under  consideration.  Here  the  terms  "  shall 
be"  are  the  appropriate  and  proper  terms,  requiring  no  construction  by  which  tl  ay 
shall  be  made  to  operate  in  presenti;  but  operating  from  and  after  a  future  day 
fixed  unchangeably  by  the  constitution.  Tlie  day  too  thus  fixed,  was  but  six 
months  distant,  a  time  barely  sufficient  to  give  full  and  fair  notice  throughout  the 
state  and  Union,  of  the  existence  of  this  prohibition,  conforming  in  this  particular 
to  many  similar  laws  on  the  same  subject  in  other  states,  quoted  in  the  conclud- 
ing branch  of  this  argument.  Why  name  a  day  at  all,  and  especially  a  day  fixed 
and  certain,  and  so  near  at  hand,  if  this  clause  were  merely  directory  to  the  legis- 
lature? If  any  doubt  could  still  remain,  it  must  vanish  upon  an  investigation  of 
the  legislation  of  the  state  on  this  subject.  By  the  act  of  the  territorial  legislature 
of  Mississippi,  of  the  Ist  of  March,  1808,  certain  restrictions  are  imposed  upon  the 
introduction  of  slaves  as  merchandise,  but  chiefly  designed  to  prevent  the  intro- 
duction of  dangerous  or  convict  slaves.  (Tur.  Dig.  386.)    Thus  stood  the  law,  when 


Groves  et  al.  v.  Slaughter. 


in  1817,  we  formed  our  first  constitution,  which  contained  the  following  cUum: 
"  They  (the  legislature)  shull  have  full  power  to  prevent  slaves  from  beini;  brought 
into  this  state  as  merchandise  ;"  but  there  was  no  prohibition  of  the  traflic.  By  the 
uct  of  June  IH,  1822,  the  territorial  law  before  quoted  was  substantially  re*enacted. 
Revised  Code,  »«». 

Thus  stood  the  statutes  and  the  organic  law  when  the  convention  assembled 
which  adopted  the  new  constitution  of  1832.  The  Hrst  contained  the  fullest  grant 
of  power  on  this  subject  to  the  legislature.  Why  then  this  important  change  in 
this  provision  from  a  mere  grant  of  power  to  the  legislalure,  into  the  prohibitory 
terms  of  the  constitution  of  1832,  unless  an  absolute  prohibition  was  designed  by 
the  frainers  of  that' instrument  ?  The  one  was  a  grant  of  power  to  the  legislature, 
the  otiinr  was  a  prohibition.  The  reason  of  the  change  is  obvious.  The  legisla- 
ture, during  the  intervening  period  of  fifteen  years  between  the  adoption  of  the  old 
and  of  the  new  coniititution,  had  never  fulfilled  the  trust  confided  to  them  by  pro- 
hibiting the  introducliun  of  slaves  as  merchandise;  and  therefore  the  framersof  the 
new  constitution  determined  to  confide  this  trust  no  longer  to  the  legislature,  but 
to  prohibit  this  trafKc  themselves,  by  an  absolute  constitutional  interdict,  operating 
of  itself,  upon  a  day  very  near  at  hand,  fixed  and  certain,  and  placed,  as  were  many 
other  subjects  by  the  constitution,  above  the  control  of  the  legislature.  The  his- 
tory of  tliat  period  will  also  furnish  other  reasons  why  the  constitution  of  1817 
was  changed  by  that  of  1832  from  a  direction  to  the  legislature,  into  a  prohibition. 
Events  had  occurred  in  Southampton,  Virginia,  but  a  few  months  preceding  the 
period  when  the  convention  of  1832  assembled,  which  had  aroused  the  attention  of 
the  Southern  States  to  the  numbers  and  character  of  the  slave  population.  The 
influence  of  that  insurrection  is  no  where  more  clearly  demonstrated  than  in  the 
extraordinary  votes  and  speeches  in  the  legislature  of  Virginia,  assembled  shortly 
uiler  that  catastrophe.  If  insurrection  had  not  appeared  in  Mississippi,  there  had 
been  many  appreliensionsnpon  the  subject;  and  looking  at  the  tragedy  just  enacted 
in  our  sister  state,  the  convention  introduced  this  provision,  to  produce  among 
other  good  effects,  additional  security  to  the  people  of  Mississippi.  Whilst,  in  this 
constitution,  they  gave  to  the  governor  power  to  call  forth  the  militia  of  the  state 
"to  suppress  insurrection,"  they  guarded  against  the  supposed  danger  of  that 
event,  by  tins  important  constitutional  interdict.  If  Virginia  had  been  driven  to 
the  very  verge  of  the  abandonment  of  her  ancient  institutions,  by  the  events  which 
had  occurred  within  her  limits,  was  there  not  some  reason  that  the  convention  to 
which  was  entru.sted  the  st'curity  of  the  people  of  Mississippi,  should  interpose 
some  guards  for  their  protection  ?  In  looking  at  the  general  census  of  1830,  then 
recently  [lublisiied,  they  saw,  that  whilwl  in  Virginia  the  whites  outnumbered  the 
slaves  221,511,  in  Mis.sissippi  the  preponderance  of  the  whites  was  but  4784,  and 
that  the  slave  population  was  increasing  in  an  accelerated  ratio  over  the  whites, 
the  former  now  greatly  outnumbering  the  latter.  In  looking  beyond  the  aggre- 
gates of  the  two  races  in  tiie  state  to  particular  counties,  they  found  that  in  an 
entire  range  of  adjacent  counties,  the  preponderance  of  the  slavn  over  the  white 
population  was  three  to  one  ;  in  man}'  of  the  contiguous  patrol  districts,  more  than 
ten  to  one,  and  in  many  plantations  more  than  one  hundred  to  one.  In  looking  at 
the  policy  adopted  by  our  coterminous  and  sister  state  of  Louisiana,  they  found 
that,  in  that  state,  the  legislature,  by  laws  passed  the  19th  November,  1831,  and  2d 
April,  1832,  had  under  severe  penalties'  prohibited  the  introduction  of  slaves  as 
merchandise,  and  declared  the  slaves  so  introduced  to  be  free.  Such  was  the 
legislation  of  Louisiana  immediately  preceding  the  assembling  of  our  convention, 
and  such  the  circumstances  and  example  under  which  we  acted.  We  acted  as 
Louisiana  had  just  done,  by  introducing  a  provision  designed  to  operate  after  the 
short  notice  of  six  months,  as  an  absolute  prohibition.  The  subject  had  attracted 
great  attention  when  the  delegates  were  elected  to  the  convention;  and  the  people 
fully  expected  and  required  final  and  definitive  action  by  the  convention  itself  on  this 
question,  and  they  were  not  disappointed. 

Such  was  the  opinion  which  prevailed  when  the  first  legislature  assembled  un- 
der the  new  constitution,  in  Jan.  1833.     This  legislature  was  assembled  at  the 
lime  specified  by  the  convention,  by  virttie  of  writs  issued  by  that  body,  to  orga- 
a2 


ft 


Groves  et  al,  v.  Slaughter, 


nize  the  govarnmtnt  under  the  new  conetitution.  If  thii  olauM  be  in  iteelfa  pro* 
liibitinn,  then  it  did  not  operate  as  a  command  to  tiie  legislnture,  But  if  it  be  not 
a  prohibition,  then  it  ii  conceded  to  be  a  nmndute,  directed  ipecifically  to  the  legia- 
luture,  commanding  them  to  prohibit  the  introduction  of  elavei  aa  merchandiee 
from  and  aAer  the  let  of  May,  1833.  If  that  legislature  adjourned  without  fulfill- 
ing thia  itijunotion,  it  must  have  remained  forever  unfulfilled  in  one  most  important 
particular,  namely,  the  time  fixed  by  the  convention  from  which  the  prohibition 
should  commence  to  operate;  for,  under  the  provision  of  the  constitution,  no  other 
legislature  could  convene  until  November,  1H83,  u  period  long  subsequent  to  th« 
time  designated  for  the  commencement  of  the  operation  of  thie  prohibition. 

The  legiulature  was  a  departmt-nl  of  the  government,  created  by  the  convention, 
and  assembled  in  pursuance  of  its  aiitlmrity .  Under  the  7th  article  of  the  new  con- 
stitution, every  member  of  this  legislature  lina  taken  a  solemn  oath  to  support  that 
instrument,  and  had  they  conceived  the  provision  in  controversy  to  be  a  mandate 
directed  to  the  legislature,  they  would  linvu  ditiregnrded  those  oaths,  if  they  had 
failed  to  make  any  prohibitory  enuctinent  in  |)urHuance  of  this  injunction  of  the 
constitution.  Had  even  this  mandate  been  in  oppoHilion  to  their  view*  of  public 
policy,  it  would  still  have  been  obligatory  upon  them.  Ihit  this  legislature  passed 
uo  laws  in  pursuance  of  this  provision,  because  lliey  did  not  conceive  this  clause 
to  be  a  mandate  directed  to  them,  but  un  operative  prohibition  of  the  constitution  ; 
and  that  the  omiHsion  was  not  casual,  is  proved  by  the  fact,  that  they  proposed  for 
the  consideration  of  the  people  at  the  next  November  election,  an  amendment  to 
the  constitution,  striking  out  this  2d  sectiim  in  regard  to  slaves,  and  introducing 
in  lieu  thereof,  the  following  provision :  "  I'lie  legislature  of  this  state  shall  have, 
and  are  hereby  vested  with  power  to  pass,  from  time  to  time,  such  laws  regulating 
or  prohibiting  the  introduction  of  slaves  into  this  state  as  may  be  deemed  proper 
and  expedient."  (Laws  of  Mississippi,  178  ;  March  2d,  1833.)  The  legislature 
thus  endeavoured  to  change  a  prohibition,  by  their  proposed  amendment,  into  a 
mere  discretionary  authority,  which  they  miirht  or  might  not  exercise  at  their 
pleasure.  Thia  attempt  on  the  part  of  the  ieglttlature  to  obtain  for  themselves  this 
discretionary  power  failed,  as  they  conceded  at  the  succeeding  session  of  1833. 
The  amandment,  in  order  to  be  incorporatt'd  into  tlie  constitution,  must  have  been 
voted  for  by  "  a  majority  of  the  qualified  electors  voting  for  the  members  of 
the  legislature;"  and  it  is  obvious  that  4500  votes  given  for  this  amendment, 
must  have  constituted  a  small  fraction  of  the  voters  of  the  state  at  that  period. 
The  vote  of  the  state  for  governor  in  November,  1839,  was  34,332.  1  have  not 
the  vote  of  Nov.  1833,  but  4500  could  not  have  been  one-third  of  the  vote  then 
actually  given  for  members  of  the  legislature.  A  very  small  vote  was  given  against 
the  amendment,  and  it  is  surprising  that  so  many  votes  were  given,  as  no  vote  on 
the  question  wos  a  vote  against  the  amendment.  The  legislature,  in  December, 
1833,  acknowledged,  that  their  proposed  amendment  had  failed.  The  subject  was 
then  again  before  them.  They  had  renewed  their  oaths  to  obey  the  mandate  of  the 
constitution,  and  why  was  obedience  again  refused.'  Because  this  legislature, 
like  its  predec»B8or,  did  not  view  this  provision  as  a  mandate  directed  to  them,  but 
as  a  prohibition.  It  is  said,  that  at  the  date  of  this  note,  the  validity  of  such  aeon- 
tract  was  not  disputed  in  Mississippi;  but  this  is  entirely  erroneous,  and  the  mis- 
take is  proved  by  the  very  quotation  made  by  our  opponents,  from  the  message  of 
Governor  Lynch,  of  the  Ist  Monday  in  January,  1837.  That  message  declares  at 
that  date,  that  "it  has  now  become  a  mooted  question,  under  this  clause  of  the 
constitution,  whether  contracts  for  that  description  of  properly  can  be  enforced." 
Now  the  date  of  this  contract  is  the  20th  of  December,  1836,  but  two  weeks  pre- 
ceding the  admission  thus  made  in  the  executive  message,  that  the  validity  of 
these  contracts  was  then  "a  mooted  question."  There  is  no  fact  more  notorious 
in  the  state,  than  that  the  legality  of  these  tronsactions  was  disputed  at  the  date  of 
this  contract;  and  the  suggestion  that  tljis  illegality  is  an  ex  post  facto  discovery, 
when  bankruptcy  became  universal,  is  entirely  erroneous.  This  messoge  shows 
no  embarrassments  at  that  date.  The  legislature  were  then  engaged  in  making 
banks  and  paper  money.  We  were  then  careering  onward  upon  the  tide  of  a  de- 
lusive prosperity ;  and  the  exploaion  of  the  succeeding  spring,  came  upon  us  like 


Grovti  et  al.  v.  Slaughter* 


■om«  of  thoie  tropical  hurrioanei,  whoie  only  warning  coniiita  in  on*  miildfln 
uvcrwhelining  aweep  of  ruin  and  dmulation.  It  is  trur  Oovernor  Lynch  did,  aflar- 
wardi,  in  liia  meaaage  of  May,  18S7,  recuinni«tid  the  pnrorcnment  uf  thia  pruhibi* 
tiun.  It  i»  tru«  alau  that  tho  legiMlatiire  diil  th«n  guard  agninat  the  violation  of 
thia  prohibition,  by  puniihing  tliH  trunM^rt-iiiDra  of  it  with  (in«  and  iinpriaoniiient: 
but  all  thia  iiiipliea  no  adiniaaiun  of  the  |ir>  vioiia  validity  of  theav  contracta,  for  thia 
court  have  anid  that  a  conatitution  ia  not  the  |iliio<<  in  wliiuh  the  minor  detuila  of 
legialation,  theae  paiiia  ami  p<>naltit)B  nr«  to  !>«<  found.  Uut  if  this  queation  waa 
mooted  aa  wo  have  aeen  at  llie  date  of  thia  coiitruut,  it  waa  not  on  the  ground  that 
thia  waa  a  mandate  ;  but  tliat,  rnt  a  proliihition,  it  interdicted  only  the  ini(iortation 
and  not  the  aale.  The  proof  on  thia  point  i8  iinipic;  but  we  need  only  refer  to  the 
opinion  of  Chancellor  liuckner,  ao  much  relied  on  by  our  opponenta,  in  which  ha 
reciteii  nil  the  >/rounda  aaaumed  in  belinlf  of  the  ncf^ro  tradera,  namely  : — 

"  iMt.  'i'hal  ihongh  the  introduction  of  the  iifjrriieH  may  have  been  illegal,  yet 
that  the  coniecpienci's  of  that  act  could  not  be  connnunicated  to  the  contract  of 
aale  and  purchaae,  which  waa  a  aepurate  and  diHtinct  transaction  between  them- 
aeivea  and  the  cornplainanta. 

'*  2d,  If  the  reverae  of  the  firat  propoaition  were  true,  it  ia  contended  that  the  ille> 
gality  of  the  contract  waa  a  matter  of  pure  defence  in  the  court  of  law." 

Here,  even  at  that  late  day  in  thia  controverHy,  neither  theae  wealthy  and  powerful 
traderH,  nor  their  learned  counsel,  deemed  it  even  a  point  in  the  controversy,  that  thia 
proviaion  waa  not  a  constitutional  interdict,  but  thut  the  only  «iuestion  was,  whether 
that  interdict  affected  the  sale  or  the  introdu(Mion  only.  Chancellor  Buckner  also 
takes  up  fully  the  constitutional  question,  and  declares  his  determination  "  to  put  it  in 
train  for  ultimate  decision."  In  that  opinion,  which  is  very  elaborate,  he  does  not 
pretend  that  this  clause  in  the  constitution  wns  iiotof  itself  prohibitory ;  but  on  the 
contrary,  he  says  :  "  Thus  we  intend  to  prohibit  the  multiplication  of  slaves  in  thia 
statu,  but  as  we  do  not  intend  to  extend  it  so  fur  as  to  prohibit  our  own  citizens 
from  bringing  them  in  for  their  own  utie,  in  order  to  render  the  introduction  illegal, 
it  must  appear  as  a  part  of  tiie  act,  that  tin*  intr.nt.ion  existed  to  use  the  slave  so  in- 
troduced, as  an  article  of  merchandise  or  for  siilf.  If  the  framersof  the  couHtitu* 
tion  intended  any  thing  beyond  thisnonstruction,  instead  of  the  language  employed, 
we  should  expect  to  find  them  declaring  that  the  sale  of  negroes  in  this  state, 
which  were  introduced  as  merchandise  or  for  sale,  shall  be  prohibited  from  and 
after  the  tirst  day  of  Mny,  1833.  Such  a  construction  would  fully  sustain  the  con- 
struction contended  for  liij  the  comjiUii  mints  counsel;  there  the  'sale'  not  the  'intro< 
duction'  would  be  the  thing  prohibited.  To  riliow  my  understanding  of  it  more 
clearly,  I  mean  to  declare,  that  the  moment  the  negroes  were  '  introduced  as  mer- 
chandise or  for  sale,'  the  offence  was  at  once  com/ilete.  JVo further  step  was  necessary 
to  brinir  it  within  the  mtaninfr  of  the  prohibilonj  clause  of  the  constitution."  Here  it  is 
most  distinctly  conceded,  thut  the  act  of  iniportntion  with  intent  to  sell,  is  rendered 
illegal  by  "the  prohibitory  clause  of  the  constitution;"  and  that  the  contract  by  vir- 
tue of  the  true  construction  of  that  clause  would  have  been  illegal,  if  the  sale  had 
been  embraced  in  the  provision.  And  not  only  is  this  point  thus  clearly  conceded 
in  this  case,  but  no  decision,  so  far  as  my  knowledge  extends,  has  ever  been  made 
by  any  judge  against  us  on  this  point. 

Upon  this  point  then  we  have  tlie  decision  of  the  district  judge  of  the  United  States 
for  the  state  of  Mississippi  (Mr.  Gholson);  the  decision  of  Chancellor  Buckner  so 
much  relied  on  by  our  opponents ;  and  finally,  the  decision  of  the  highest  court  of 
the  state  of  Mississippi,  after  the  most  elaborate  argument,  the  question  being  sent 
up  for  the  express  purpose  of  obtaining  a  final  adjudication.  That  opinion,  too, 
was  delivered  by  a  gentleman  distinguished  al  the  bar  and  on  the  bench,  as  a 
statesman  and  jurist;  who  had  repeatedly  served  with  distinction  in  the  legislature 
of  the  state,  upon  the  bench  of  the  circuit  court,  in  the  convention  which  framed 
this  very  constitution,  in  the  Senate  of  the  United  States,  and  finally  as  a  member 
of  the  highest  court  of  the  state.  He  was  not  only  a  member  of  the  convention 
which  framed  the  constitution,  but  chairman  of  the  very  committee  to  which  thia 
clause  was  referred.  He  was  a  witness  of  all  that  transpired  in  that  committee  and 
ia  that  convention ;  he  participated  in  all  the  debatea  upon  the  question,  observed 


VUl 


Groves  et  al.  v.  Slaughter. 


all  the  modifications  of  this  provision  from  the  imperfect  form  in  which  it  was 
originally  presented,  until  it  was  perfected  as  it  now  stands  ;  and  his  opinion  as  to 
the  intention  of  the  convention,  is  the  testimony  of  a  witness  as  well  as  the  deci- 
sion of  a  judge.  Concurring  with  him,  was  the  able  and  learned  Chief  Justice  of 
the  state,  and  there  was  no  dissenting  opinion. 

As  authority  merely,  such  a  decision  under  such  circumstances,  pronounced  by 
the  highest  court  of  the  state  upon  a  question  regarding  the  construction  of  a  clause 
in  their  own  constitution,  upon  a  local  question  with  which,  and  all  the  proceed- 
ings relating  to  it  in  the  convention  and  in  the  legislature,  they  must  be  more 
familiar  than  this  court  cai.  be,  ought  to  be  conclusive. 

In  delivering,  after  solemn  argument,  the  deliberate  opinion  of  the  high  court  of 
errors  and  appeals  of  Mississippi,  Judge  Trotter  says — 

"Two  questions  present  themselves  for  the  consideration  of  this  court:  1st. 
Whether  the  consideration  of  the  note  for  which  the  judgment  was  given  is  illegal, 
and  renders  it  void.     2d.  Whether  a  court  of  chancery  can  give  relief. 

"  The  constitution  of  1832  provides  that  '  tlie  introduction  of  slaves  into  this 
state  as  merchandise,  or  for  sale,  shall  be  prohibited  from  and  after  the  first  day  of 
May,  1833.'  That  it  is  competent  for  the  people  in  canvention  to  establish  a  rule 
of  conduct  for  themselves,  and  to  prohibit  certain  acts  deemed  inimical  to  their 
welfare,  is  a  proposition  which  cannot  be  controverted.  And  such  rule,  and  such 
prohibition  will  be  as  obligatory  as  if  the  same  had  been  adopted  by  legislative  enact- 
ment. In  the  former  case  it  is  endowed  with  greater  claims  upon  tlie  approbation 
and  respect  of  the  country,  by  being  solemnly  and  deliberately  incorporated  with 
the  funda^nental  rules  of  the  paramount  law,  and  thus  placed  beyond  the  contin- 
gency of  legislation.  It  has  been  argued  that  this  provision  in  the  constitution  is 
merely  directory  to  the  legislature.  Tiiis  interpretation  is  opposed,  as  I  conceive, 
to  the  plain  language  of  the  provision  itself,  as  well  as  to  tlie  obvious  meaning  of 
the  convention.  It  cannot  surely  be  maintained  that  tiiis  provision  is  less  a  prohi- 
bition against  the  introduction  of  slaves  as  merchandise,  because  it  is  not  clothed 
with  the  sanction  of  pains  and  penalties  e.xpressed  in  the  body  of  it.  That  bt^longed 
appropriately  to  the  legislature.  Their  neglect  or  refusal  to  do  so,  might  lessen  the 
motives  to  obedience,  but  could  not  impair  the  force  of  the  prohibition." 

Here,  then,  is  the  question  made  for  the  final  adjudication  of  the  court,  and 
clearly  determined  by  them,  and  with  on  ability  worthy  of  their  high  reputation. 
It  was,  too,  a  decision  in  favour  of  the  trader  in  slaves,  upon  the  doubtful  question 
of  chancery  jurisdiction,  and  lie  was  permitted,  fi)r  want  of  a  defence  at  law,  to 
reap  the  fruits  of  his  unlawful  contract;  thus  vindicating  the  court  in  this  very 
decision,  from  the  charge  of  any  bias  as  judges  in  favour  of  our  own  citizens,  so 
unjustly  urged  by  our  opponents,  as  a  reason  why  that  decision  should  have  no 
weight  with  this  court.  The  judges  of  that  court,  for  integrity  and  impartiality, 
are  universally  esteemed  by  the  bar  and  by  the  people,  and  by  all  men  and  all 
parties  in  the  state;  any  insinuation  that  these  judges  or  any  one  of  them  ever 
had  been  or  ever  could  be  governed  by  any  unworthy  bias,  could  only  subject  to 
just  suspicion  those  by  whom  such  a  suggestion  could  be  made,  and  those  upon 
whom  it  could  have  the  slightest  operation.  I  am  restrained  by  my  respect  for 
this  court,  from  expressing  here  my  indignation  at  the  assault  made  upon  the 
functionaries  and  people  of  Mississippi.  It  is  true,  as  stated,  that  great  embarrass- 
ments pervade  the  state,  and  that  it  is  strewed  with  the  wrecks  of  broken  hopes 
and  bankrupt  fortunes.  But  has  the  honour  of  the  state  been  tarnished,  have  the 
laws  been  disregarded,  the  courts  overthrown  or  corrupted,  or  the  constitution 
subverted  .'  Has  rebellion  arrested  for  a  time  the  progress  of  justice,  as  it  once 
did  from  similar  causes,  in  the  great  state  of  Massachusetts  ?  Have  we  fo11ov;ed 
the  evil  example  of  another  great  st  'e  of  the  west,  by  enacting  laws  permitting  a 
tender  of  worthless  paper  upon  exe  utions  for  debts  payable  in  gold  and  silver.' 
Have  we,  to  enforce  these  enactments,  trampled  upon  the  fundamental  law  of  the 
state  and  of  the  Union.'  Have  we  entered  the  sacred  halls  of  justice,  and  by  the 
strong  arm  of  legislative  and  popular  power,  expelled  from  the  bench  the  highest 
judicial  functionaries,  and  placed  ursurpers  there  upon  the  broken  fragments  of 
(he  conBtitution .'     Have  we — but  even  in  retaliation  I  will  darken  no  more,  with 


d 


Groves  et  al.  v.  Slaughter. 


ix 


the  pencil  of  truth,  thoce  scenes  of  misfortune,  delusion  and  folly,  which  a  thou- 
sand glorious  deeds  and  ennobling  sacrificeB,  in  war  and  in  peace,  should  expunge 
from  the  history  of  that  patriotic  commonwealth.  But  from  that  state  at  least,  if 
not  from  all  the  Union,  though  we  have  never  asked  their  sympathy  for  our  suf- 
ferings, might  we  not  justly  challenge  their  respect  for  the  fortitude  with  which 
they  are  borne.  Again  and  again  has  the  stern  mandate  of  the  law  entered  the 
dwelling  of  the  husband  and  wife,  and  driven  forth  from  it,  Ihem  and  their  chil- 
dren, witliout  a  roof  to  shelter  or  a  home  to  receive  them.  Again  and  again  have 
endorsers  and  sureties  for  others  sutfered  tlie  fate  of  tiie  principals,  and  stood  by  in 
silence  whilst  the  sheriff  or  marshal  proclaimed  the  sale,  for  the  debts  of  others,  of 
the  last  remnant  of  that  property,  which  years  of  honest  industry  had  accumulated. 
And  was  the  law  resisted  ?  No  !  Tiiese  gloomy  scenes  have  been  marked,  almost 
universally,  by  u  quiet  endurance  of  suffering,  and  virtuous  submission  to  tlie  laws 
of  the  land.  I  regret  the  occasion  that  has  e.xtorted  these  remarks  upon  a  subject 
which  should  never  have  been  introduced  into  this  argument;  but,  when  Missis- 
sippi is  thus  arraigned  before  this  iiigh  tribunal,  Ibis  vindic  ation  is  just  and  proper. 

But,  if  tills  clause  be  not  a  prohibition,  it  is  conceded  to  be  a  mandate  to  the 
legislature,  requiring  from  them  implicit  obedience,  it  is  admitted,  that  if  the  le- 
gislature had  passed  an  act  repugnant  to  this  provision,  that  ant  would  have  been 
as  clear  a.  violation  of  their  oaths  and  of  the  constitution,  and  as  utterly  void  as  if 
this  clause  had  been  an  absolute  proliibiiiim.  Th«  mandate  then  established  a 
policy  wliich  the  legislature  could  not  overthrow;  and  being  binding  upon  the  le- 
gislature, was  obligatory  on  the  judiciary.  The  government  itself,  in  all  its 
branches,  was  created  by  the  convention;  they  were  all  creatures  of  the  -jorstitu- 
tion,  and  no  one  department  of  that  government  could  violate  any  mandate  or  pro- 
vision of  that  constitution.  The  time  was  not  indefinite,  but  fixed  on  the  1st  of 
May,  1833,  from  which  very  day,  in  all  tine  to  come,  this  mandate  should  be 
made  to  operate  ;  and  if  the  legislature  neglected  to  enforce  this  mandate  by  penal 
sanctions,  did  it  therefore  follow,  that  the  judiciary  should  decree  a  performance  of 
a  contract,  thus  required  to  be  prohibited  from  and  after  a  certain  day  fixed  by  the 
constitution  '  A  contract  contrary  lo  the  public  policy  of  a  state  will  not  be  en- 
forced by  the  judiciary.  This  policy  may  arise  from  the  common  unwritten  law 
of  a  state,  from  its  peculiar  situation  and  institutions,  or  expressly  or  by  impli- 
cation, from  a  statute  or  constitutional  provision.  Now  the  convention  had  pro- 
mulgated it  as  the  policy  of  the  state,  that  from  and  after  the  1st  of  May,  1833, 
slaves  should  not  be  introduced  as  merchandise  ;  and  was  the  will  of  the  convention 
or  of  the  legislature  to  be  obeyed  by  the  courts  in  regard  to  this  policy?  It  was 
the  will  of  the  convention  that  this  trafHc  should  cease  on  a  day  certain  and  fixed  by 
the  constitution;  and  if  the  legislature,  which  could  not  change  this  policy,  failed 
to  discharge  their  duty,  that  was  no  reason  why  the  courts  should  follow  their  evil 
example.  The  courts  might  well  say,  and  it  was  their  duty  to  say,  that  although 
we  cannot  act  affirmatively  against  tlie  violators  of  this  policy,  they  shall  not  make 
the  judiciary  the  instruments,  by  a  decree  in  their  favour,  to  overthrow  a  great 
constitutional  mandate,  designed  to  accomplish  important  purposes.  The  courts 
of  a  country  will  often  ascertain  without  a  statute,  and  often  from  the  mere  impli- 
cation of  a  statute,  or  merely  from  the  situation  of  the  country,  what  is  contrary 
to  the  policy  of  a  state,  and  they  will  enforce  no  contract  repugnant  to  that  polic3'. 
To  no  higher  source  then,  could  the  courts  of  a  state  go,  in  order  to  ascertain  what 
was  the  true  policy  of  a  state,  than  to  a  mandatory  clause  in  the  constitution. 
Had  the  clause  in  question  been  a  mere  grant  of  jjower  to  the  legislature,  the 
courts  might  have  waited  the  action  of  that  body;  but,  when  the  clause  was  man- 
datory, it  promulgated  the  policy  of  the  stale,  from  an  authority  paramount  to  that 
of  the  legislature,  and  which  policy,  the  legislature,  neither  by  acting  nor  declining 
to  act,  could  expunge  from  the  constitution. 

If  the  will  of  the  legislature  were  ascertained  to  be  one  way  in  regard  to  this 
policy,  and  that  of  the  convention  the  other,  which  should  be  obeyed  by  the  judi- 
ciary, when  required  to  act  by  decrees  affirmatively  upon  the  question.'  Can 
there  be  a  doubt  that  the  true  answer  to  ouch  a  question  should  be  in  the  language 
of  this  court,  in  4  Wheat.  408,  "  If  indeed  such  he  the  mandate  of  the  conatitution, 


,«.*»«" 


X  Groves  et  al.  v.  Slaughter. 

we  have  only  to  obey."  This  view  of  the  subject  is  sustained  by  a  late  una- 
nimous decision  of  the  Supreme  Court  of  Tennessee,  in  which  tiiey  say  :  "  In 
the  precise  state  above  supposed  stood  the  matter,  when  the  convention  in  1834 
adopted  the  5th  section  of  the  11th  aiticU  of  the  reformed  constitution,  in  which 
they  provide,  that  the  legislature  '  shall  pass  laws  to  prohibit,  the  sale  of  lottery 
tickets  in  this  state.'  This  was  itself  a  prohibition,  and  was  announced  to  the  com- 
plainants before  the  formation  of  their  contract  with  the  defendants."  Bass  vs. 
Mayor,  «&c.  Meigs,  421.  Upon  tiiis  ground  alone,  the  court  pronounced  the  contract 
invalid,  which  was  dated  March  '.id,  1835,  and  no  law  was  passed  till  the  13th 
February,  1836,  wiien  a  law  was  enacted  prohibiting  lotteries;  as  a  law  was  passed 
in  1837  by  the  legislature  of  Mississippi  prohibiting  the  introduction  of  slaves  as 
merchandise.  But  independent  of  tlie  subsequent  law  in  Tennessee,  their  courts 
pronounced  the  contract  invalid,  in  a  case  where  many  thousand  dollars  had  been 
advanced  to  the  city  of  Nashville,  upon  the  sale  of  this  lottery  for  the  useful  pur- 
pose of  improving  the  streets  of  tiial  city,  and  which  money  would  be  entirely  lost 
if  the  contract  were  declared  invalid.  But  it  was  so  pronounced  upon  the  sole 
ground  that  the  constitutional  mandate  to  pass  laws  prohibiting  lotteries  "  was  it- 
self a  prohibition ;"  because  by  this  mandate  the  policy  of  the  stale  "  was  announced 
to  the  complainants  before  the  formation  of  their  contract  with  the  defendants,"  and 
they  had  no  right  to  ask  the  court  to  disregard  that  policy,  upon  the  ground  that 
the  legislature  had  failed  to  provide  the  proper  penalties.  The  court  could  not 
supply  those  penalties,  but  they  might  well  declare  that  they  would  not  become 
instrumental  in  defeating  this  great  i)ubiic  policy  by  decreeing  the  performance  of 
contracts  repugnant  to  it.  If  such  a  construction  of  the  constitution  of  Tennessee, 
upon  a  niiie  mandate  to  prohibit  lotteries  was  proper,  how  much  stronger  is  the 
case  before  us  .'  Here  the  subversion  by  the  courts  of  the  policy  promulgated  in 
the  constitution,  might  involve  not  merely  the  property,  but  the  lives  of  the  people 
of  Mississippi.  Had  not  the  people  tlien  in  such  a  case  a  right  to  require  that  their 
courts  should  not  become  au.viliary  in  encouraging  the  subversion  of  this  policy,  by 
the  enforcement  of  contracts  repugnant  to  it?  The  legislature  might  never  agree 
upon  the  details  of  a  bill  for  the  punishment  of  the  transgressors  of  this  policy  ;  and 
must  tills  mandate  therefore  be  expunged  by  the  courts  from  the  constitution,  or 
changed  into  a  grant  of  discretionary  power  to  the  legislature  ?  If  so,  this  clause 
might  as  well  never  have  been  inserted  in  the  constitution.  It  is  sufficient  for 
courts  to  know  in  any  case,  that  the  enforcement  of  a  contract  will  be  dangerous  to 
the  peace  and  prosperity  of  a  state ;  and  they  have  invariably  refused,  from  a  regard 
to  the  public  good,  to  enforce  such  contracts.  What  better  evidence  could  the 
courts  of  Mississippi  desire,  that  the  enforcement  of  this  contract  would  be  subver- 
sive of  the  true  policy  of  the  state,  and  dangerous  to  its  peace  and  prosperity,  than 
the  prohibitory  mandate  of  the  constitution  .'  If,  as  a  consequence  of  a  refusal  of 
the  courts  to  maintain  this  cardinal  policy,  the  state  had  been  filled  with  insurgent 
slaves,  or  with  slaves  in  an  excess  too  far  beyond  the  white  population,  and  the 
scenes  of  Southampton  had  been  re-enacted  within  our  limits,  would  the  judicial 
ermine  be  unstained  with  the  blood  of  the  innocent  victims,  who  had  appealed  to 
them  in  vain  to  discharge  their  duty,  by  denying  their  aid  to  all  these  contracts 
thus  clearly  repugnant  to  the  prohibitory  policy  of  the  constitution  ?  Why  should 
the  judicial  sanction  be  given  to  the  violation  of  a  constitutional  mandate;  and  the 
legislature,  thus  encouraged  by  a  co-equal  and  co-ordinate  department  of  the 
government,  to  persist  in  refusing  to  discharge  the  duty  imposed  by  the  constitu- 
tion ?  It  is  clear  then  to  my  mind,  that,  whether  the  clause  in  question  be  of  itself 
an  absolute  prohibition,  or  a  prohibitory  mandate,  the  contract  is  alike  invalid,  in 
accordance  with  reason  and  argument,  as  well  as  upon  the  authority  of  the  unnni* 
inous  decisions  of  the  Supreme  Courts  of  Mississippi  and  Tennessee. 

Such  was  the  view  which  those  courts  took  of  their  duty  to  the  people  under  these 
clauses  in  their  respective  state  constitutions;  and  it  would  be  strange  indeed  if  this 
court  should  now  inform  those  tribunals,  that  they  had  erred  in  this  respect,  and  di- 
rect them  to  retrace  their  steps  on  this  question.  The  people  of  Mississippi  in  con- 
vention, when  creating  a  government  had  said,  this  traffic  "  shall  be  prohibited  from 
and  after  the  Ist  of  May,  1833."    Was  it  then  competent  or  proper  for  the  judiciary, 


f^ 


a  late  una- 

y  Buy  :  "  In 

on  in  1834 

n,  in  which 

e  of  lottery 

to  the  com- 

"     Bass  vs. 

the  contract 

ill  the  13th 

was  passed 

of  slaves  as 

iheir  courts 

irs  had  been 

useful  pur- 

entirely  lost 

Don  the  sole 

ies  "  was  it- 

s  announced 

ndants,"  and 

ground  that 

jrt  could  not 

not  become 

rformance  of 

f  Tennessee, 

ronger  is  the 

omulgated  in 

of  the  people 

lire  that  their 

his  policy,  by 

t  never  agree 

s  policy ;  and 

tnstitution,  or 

10,  this  clause 

I  sufficient  for 

dangerous  to 

from  a  regard 

ice  could  the 

lid  be  subver- 

osperity,  than 

)f  a  refusal  of 

irith  insurgent 

ation,  and  the 

d  the  judicial 

id  appealed  to 

liese  contracts 

Why  should 

idate;  and  the 

tment   of  the 

!  the  constitu- 

ion  be  of  itself 

ke  invalid,  in 

of  the  unnnU 

)le  under  these 
e  indeed  if  this 
espect,  and  di- 
iissippi  in  con- 
irohibited  from 
r  the  judiciary, 


Groves  et  al.  v.  Slaughter.  xi 

who  are  but  agents  for  the  people  under  this  government,  d  iving  their  eAistence 
and  authority  from  the  constitution,  and  bound  by  all  -if  .anctions,  to  say  this 
trade  ahall  not  be  prohibited  on  the  day  fixed  by  the  conve.  '  i,  but  shall  continue 
upheld  by  our  decrees,  until  certain  other  agents  of  the  pt,opie  superadd  legislative 
penalties.''  A  "law"  against  the  mandate  would  be  "void,"  and  so  must  be 
declared  by  the  courts  ;  and  yet  negative  action,  or  a  failure  to  act  in  pursuance  of 
the  mandate,  it  is  contended,  is  obligatory  upon  the  judicial  tribunals.  These 
tribunals  are  not  created  by  nor  do  they  derive  their  appointment  or  authority  from 
the  legislature,  nay  more,  they  are  expressly  authorized  to  restrain  that  department 
within  the  constitution,  by  invalidating  all  their  acts  repugnant  to  that  instrument ; 
and  it  would  be  strange  indeed,  if  when  that  paramount  law  which  all  were  bound 
to  obey,  declared  this  traffic  shall  be  prohibited  on  a  day  certain,  that  the  courts 
who  are  the  guardians  and  interpreters  of  the  constitution,  should  say,  it  shall  not 
be  prohibited  on  that  day  named  by  the  convention,  but  only  on  such  other  future 
day,  as  may  be  designated  by  the  legislature.  Even  if  legislation,  additional  and 
penal,  was  CDntemplated  by  the  convention,  does  it  therefore  follow  that  the  trade 
was  lawful  and  proper  for  judicial  sanction  .'  On  this  second  point  also  our  highest 
court,  in  the  case  above  quoted,  declare  it  immaterial  whether  it  be  a  mandate  or 
a.  prohibition.  They  say,  "  in  either  case  it  fixes  the  policy  of  the  state  on  this  sub- 
ject, and  renders  illegal  the  practice  designed  to  be  suppressed." 

These  views,  thus  declared  I'nanimously  by  the  supreme  courts  of  two  of  the 
states  of  this  Union,  are  in  accordance  with  just  views  of  constitutional  liberty. 
The  formation  of  the  constitution  of  a  state  is  an  act  of  sovereign  power  emanating 
directly  from  the  people.  Legislation  is  not  an  act  of  sovereign  power.  The  le- 
gislature is  not  sovereign.  It  is  but  a  co-ordinate  department  of  the  government, 
created  by  the  constitution  from  which  it  derives  all  its  powers;  and  when  the 
people  have  inserted  therein  a  mandate,  declaring  that  from  and  after  a  day  named 
by  them,  such  a  thing  shall  be  prohibited,  would  it  not  be  strange,  because  one  de- 
partment of  the  government,  to  whom  this  mandate  was  addressed,  had  disobeyed 
it,  that  it  should  therefore  be  considered  a  dead  letter  by  another  co-equnl  and  co- 
ordinate department  of  the  government,  sworn  to  support  the  constitution,  to  main- 
tain inviolate  all  its  provisions,  to  repudiate  all  contracts  repugnant  to  its  spirit  or 
policy,  and  to  declare  void,  and  render  inoperative,  all  acts  of  any  department  or 
persons  opposed  to  its  provisions?  The  legislature  could  pass^no  act  of  grace  or 
indulgenci',  dispensing  with  this  mandate,  and  legalizing  contracts  repugnant  to  it; 
nor  would  their  disobedience  and  failure  to  act  constitute  a  just  cause  of  disobe- 
dience by  that  very  department  which  was  not  only  sworn  to  support  the  constitu- 
tion, but  whose  peculiar  duty  it  was  to  expound  that  instrument,  and  to  keep  all 
persons  and  departments  within  its  limits,  whenever  a  case  arose  for  the  exercise 
of  their  judicial  functions.  What  is  the  meaning  of  the  oath  taken  by  the  judges 
of  our  high  court  to  '^support  the  constitution?"  It  is  to  maintain  tlie  supremacy 
of  the  constitution,  and  to  enforce  no  laws  or  contracts  repugnant  to  any  of  its 
mandates.  And  if  an  act  giving  bounties  for  the  violation  of  this  mandate  would 
have  been  void,  why  is  a  contract  repugnant  to  it.  unsanctioned  by  any  law,  valid, 
the  first  being  a  legislative  enactment,  the  second  a  confederacy  of  individuals  to 
disregard  the  mandate?  Suppose  this  mandate  had  been  addressed  to  the  Execu- 
tive, could  the  legislature,  with  his  concurrence,  or  without  it,  by  the  constitutional 
majority  of  two-thirds,  have  passed  a  valid  law  in  opposition  to  such  a  mandate  ; 
and  would  the  judiciary,  by  affirmative  decrees,  have  enforced  such  an  enactment? 
Or  if  the  mandate  had  been  addressed  to  the  judiciary,  would  an  opposing  law  have 
been  valid  ?  Surely  not.  And  the  reason  in  all  these  cases  is  the  same,  because 
no  one  of  the  departments  of  the  government,  when  required  to  act  nffirviativcly, 
can  disregard  any  mandate  of  the  constitution.  The  policy  of  a  state  may  be  an- 
nounced in  the  constitution  as  the  will  of  the  people,  either  in  a  mandate,  or  in 
any  other  form  ;  and  however  announced,  no  court  can  disregard  that  will,  or  sub- 
vert that  policy.  The  supremacy  of  the  constitution  is  the  great  cardinal  principle 
of  American  lil)erty,  from  which  there  is  no  appeal  but  to  force;  and  to  subvert  its 
principles,  c  disregard  its  mandates,  is  anarchical  and  revolutionary.  If  the  clause 
in  question  be  converted  into  a  mandate  to  the  legislature  by  interpolation  and  im< 


xu 


Groves  et  ah  o.  Slaughter. 


plication,  why  is  it  not  declaratory  by  conBtriiction,  as  well  as  mandatory;  decla- 
ratory of  the  policy  of  ^e  state  on  a  day  fixed  and  certain,  and  mandatory  to  the 
legislature  to  enforce  that  policy  by  appropriate  legislation  P  This  clause,  marking 
the  will  of  the  convention  aa  to  this  policy  upon  the  day  named  by  them,  was  de- 
claratory of  that  policy ;  not  a  policy  to  be  established  hereafter  by  grants  of  dis- 
cretionary power  to  the  legislature,  but  declared  in  a  mandate,  imperative  upon 
that  body,  and  announcing  to  all  the  will  of  the  convention.  The  words  shall  be 
prohibited,  on  a  day  named  by  the  convention,  did  announce  the  policy  designed 
by  them  to  be  established  on  that  very  day  ;  and  if,  by  interpolation  and  implica- 
tion, we  change  these  words  into  a  mandate  addressed  to  the  legislature,  shall  we 
also  so  interpret  these  words,  thus  interpolated  by  conjectural  construction,  as  to 
subvert  the  policy  thus  announced  in  terms  clear  and  explicit,  and  render  the 
whole  clause  dependent,  from  time  to  time,  upon  the  fluctuating  will  of  the  legis- 
lature, inoperative  without  tlieir  action,  changeable  at  their  pleasure,  and  amount- 
ing to  nothing  more  than  the  mere  grant  of  discretionary  power  to  the  legislature, 
commencing  when  they  legislate,  and  ceasing  when  they  repeal  the  present  or  any 
future  enactment  on  the  subject. 

In  2  Dal.  304,  Judge  Patterson,  of  this  court,  said: — "Every  slate  in  the  Union 
has  its  constitution  reduced  to  written  exactitude  and  precision.  What  is  a  consti- 
tution .'  It  is  the  form  of  government  delineated  by  the  mighty  hand  of  the  peo- 
ple, in  which  certain  first  principles  of  fundamental  laws  are  established.  The 
constitution  is  certain  and  fixed;  it  contains  the  permanent  will  of  the  people,  and 
is  the  supreme  law  of  the  land ;  it  is  paramount  to  the  power  of  the  legislature, 
and  can  be  revoked  or  altered  only  by  the  authority  that  made  it.  What  are  the 
legislatures.'  Creatures  of  the  constitution."  "  The  constitution  is  the  work  or 
will  of  the  people  themselves,  in  their  original,  sovereign,  and  unlimited  capacity. 
The  one  is  the  work  of  the  creator,  ond  the  other  of  the  creature.  The  constitu- 
tion fixes  limits  to  the  exercise  of  legislative  authority,  and  prescribes  the  orbit 
within  which  it  must  move."  "  It  is  a  rule  and  romtnission  by  which  both  legis- 
lators and  judges  are  to  proceed  ;"  and  "  the  judiciary  in  this  country  is  not  a  su- 
bordinate, but  co-ordinate  branch  of  the  government." 

Was  not  the  prohibition  of  the  introduction  of  slaves  as  merchandise  from  and 
after  a  day  "certain  and  fixed"  by  the  constitution,  one  of  those  "first  principles" 
announced  in  that  instrument  as  "  the  permanent  will  of  the  people,"  "  paramount 
to  the  power  of  the  legislature,"  and  furnishing  the  "rule  and  commission  by 
which  both  legislators  and  judges  are  to  proceed.''"  Now,  by  disregarding  this 
mandate,  the  courts  v/ould  make  an  act,  or  the  absence  of  an  act,  of  legislation, 
paramount  to  the  fundamental  law ;  they  would  exalt  the  legislature  above  the 
people,  the  creature  above  tiie  creator,  and  elevate  the  policy  of  the  legislature 
above  that  of  the  constitution. 

It  is  admitted  that  if  this  clause  were  in  a  law  it  would  be  a  prohibition,  but  as 
it  is  in  a  constitution  it  is  said  to  be  a  mere  direction  to  the  legislature,  Ncnv  the 
constitution  is  a  law,  the  sovereign  law,  the  paramount  law,  the  fundamental,  the 
supreme  law,  the  permanent  law,  the  law  of  highest  obligation,  the  lex  legum,  the 
law  of  laws.  The  constitution  of  Mississippi  of  18 17,  of  which  that  of  1832  is  an 
amendment,  declares  that  therein  and  thereby  the  people  "  do  ordain  and  establish;" 
which  is  quite  as  strong  as  do  enact ;  and  all  laws  contrary  to  any  of  its  provisions 
are  declared  "  void."  It  is  then  an  act  of  sovereign  legislation,  ordaining  and  estab- 
lishing certain  permanent  rules  and  fundamental  principles  of  public  policy,  'of 
universal  obligation  throughout  the  state,  and  not  mere  directions  to  any  one  de- 
partment of  government.  In  England,  their  early  and  fundamental  laws,  and 
especially  their  Magna  Charta,  were  called  constitutions;  and  before  tiie  revolution 
these  were  called  by  our  ancestors,  "  the  constitution,"  the  "  Englisji  constitu- 
tion," "  the  constitution  venerable  to  Britons  and  Americans" — 1  Journal  American 
Congress,  60,  63,  138,  148,149,  163.  Many  of  the  fundamental  principles  of 
public  liberty  contained  in  Magna  Charta  are  copied  into  the  constitution  of  Mis- 
sissippi and  of  the  other  states.  How  then  is  this  great  constitutional  law  regarded 
and  construed  in  England  ?  In  the  first  place,  then,  it  was  a  law,  and  is  thus  de- 
scribed in  Dwaris  on  Statutes,  801 — "  Magna  Charta,  9.  H.  3,  is  the  earliest  staiut* 


Groves  et  al.  t.  Slaughter. 


xiii 


we  hnve  on  record" — "  It  contains  37  chapters."  Among  the  rules  of  construing 
this  t'urulamental  law  here  laid  down  was  tiiis,  that  "  no  sanction  was  wanting  to 
enforce,  its  obligations,"  that  no  judgment  could  be  given  by  any  court  "  contrary  to 
any  of  its  points,"  but  that  it  sliould  be  observed  with  "  the  most  scrupulous  care" — 
Lord  Coke  says  in  regard  to  it,  "  As  the  gold  finer  will  not  out  of  the  dust,  threads, 
or  shreds  of  gold,  Id  pass  the  trust  crumb,  in  respect  of  the  excellency  of  the  metal, 
so  ougiit  not  the  learned  reader  to  let  pass  any  syllable  of  this  law  in  respect  of  the 
excellency  of  the  matter."  But  here  in  our  Magna  Charta,  the  fundamental  law  of 
the  state,  consecrated  ns  the  act  of  the  people  in  their  highest  sovereign  capacity, 
we  are  to  give  less  effect  to  its  provisions  than  to  subordinate  legislative  enact- 
ments. In  a  statute,  it  is  admitted  these  words  would  be  a  prohibition,  but  in  this 
fundamental  law,  these  same  words  are  not  so  to  operate,  but  are  to  be  changed  by 
implication  and  interpolation, or  rather  by  what  Coke  calls  "divination," guessing, or 
judicial  astrology,  into  a  mere  direction  to  the  legislature.  Was  Magna  Charta  ever 
regarded  as  a  mere  direction  to  parliament .'  No,  it  was  universally  interpreted  as 
addressed  to  the  courts,  and  to  be  enforced  by  them  with  the  most  "scrupulous  ob- 
servance" of  all  its  provisions.  And  if  by  implication  or  interpolation  we  shall 
construe  one  portion  as  addressed  to  tiie  legislature  for  their  direction,  where  is  the 
rule  to  stop.^  Parts  of  tiiis  constitution  are  addressed  in  words  to  the  legislature, 
and  other  portions  are  not  so  addressed ;  and  when  the  framers  of  the  constitution 
intended  merely  to  give  directions  to  the  legislature,  they  so  declared,  and  not 
otherwise.  No  British  court  would  so  construe  any  clause  of  Magna  Charta  as  to 
defeat  any  of  its  fundamental  principles,  or  to  change  them  into  mere  directions  to 
the  legislature  ;  and  shall  an  American  court  regard  as  less  sacred  the  prohibitory 
enactments  of  the  constitution  ?  Among  the  canons  for  construing  Magna  Charta 
is  the  maxim  "Verba  ita  sunt  intelligenda,  ut  res  magis  valeat  quam  pereat;"  but 
here  we  are  asked  so  to  construe  this  provision  that  it  may  perish  and  be  treated  as 
a  dead  letter.  Indeed  this  clause  is  asked  to  be  expounded  as  the  young  interpret 
dreams,  by  contraries ;  and  when  our  fundamental  law  saj-s,  this  traffic  "  shall  be 
prohibited  from  and  after  the  first  May,  1833, — this  is  to  be  construed  "shall  not 
be  prohibited''  on  that  or  any  other  day  but  such  as  the  legislature  may  or  may 
not  think  proper  to  de.signate. 

The  act  of  December,  1833,  it  i;^  said,  taxes  the  sale  of  these  slaves,  and  therefore 
this  clause  is  not  prohibitory.  But  this  act  is  merely  an  amendatory  and  declara- 
tory statute,  passed  in  pursuance  of  the  auditor's  rejjort  of  November,  1833,  to  re- 
move "  any  ambiguity"  m  the  act  of  182.").  Under  the  last  proviso  of  the  5th 
section  of  the  act  of  182.').  citizens  of  the  state  who  sold  slaves  as  merchandise, 
contended  tliat  they  were  not  liable  to  |)ay  the  tax.  The  auditor  thought  other- 
wise, and  justly  so,  but  to  remove  all  '•  ambiguity"  he  recommends  the  legislature 
to  "  declare  the  liuhilitij  of  every  person  bound  to  pay  the  said  tax."  The  three  first 
sections  of  the  amendatory  act  of  December,  1833,  merely  enforced  the  collection 
of  the  tax  authorized  by  tlie  act  of  1825,  and  both  acts  would  embrace  a  tax  on 
sales  of  slaves,  provided  they  had  been  introduced  prior  to  the  first  of  May,  1833. 
Now  many  slaves  introduced  for  sale  remained,  like  all  other  merchandise,  for 
years  unsold;  and  to  enforce  the  collection  of  the  tax  already  authoiized  by  the  act 
of  1825,  on  these  lawful  sales,  was  the  intention  of  the  first  three  sections  of  the 
act  of  1833.  The  fourth  section  of  the  act  of  1833,  if  it  be  a  substantive  provision, 
going  beyond  the  act  of  1825,  applies  exclusively  to  any  "  citizen  of  this  state." 
From  the  construction  of  our  opponents,  it  would  follow,  that  by  this  act,  the  legis- 
lature intended  to  discriminate  between  residents  of  the  state  and  non-residents,  by 
imposing  upon  the  former  only,  and  not  upon  tiie  latter,  a  tax  on  the  sale  of  all 
slaves  introduced  as  merchandise  after  the  date  of  the  act  of  1833.  Such  was  not 
the  intention  of  the  legislature.  The,  fourth,  section  was  declaratory  only,  and  was 
a  legislative  construction,  not  of  the  constitution  of  1832,  but  of  the  fifth  section  of 
the  act  of  1825.  That  section  commences  as  follows :  "  And  whereas  it  is  pro- 
vided, in  the  fifth  section  of  the  act  to  which  this  is  an  amendment,  that  nothing  in 
that  act  shall  authorize  a  tax  to  be  collected  on  the  sale  of  any  slave  or  slaves,  sold 
by  one  citizen  of  this  state  to  another  citizen  thereof;  therefore,  and  for  the  better 
understanding  whereof, 
B 


««■ 


XIV 


Groves  et  al.  v.  Slaughter. 


iiJi) 


"  Be  it  enacted,  That  when  any  citizen  of  this  state,  residing  permanently  there* 
in,  shall  bring  into  this  state  any  slave  or  slaves,"  &c.  That  section,  then,  upon 
its  face,  was  enacted  solely  for  the  "better  understanding"  of  the  6th  section  of 
the  act  of  which  it  was  an  amendment,  and  wilh  the  view  only  to  obviate  all 
"  ambiguity"  as  regards  that  section  by  a  legislative  construction,  applying  the  act 
of  1825  to  residents  as  well  as  non-residents.  There  is  not  one  word  in  the  act  of 
1833,  demonstrating  that  the  legislature  were  placing  any  construction  on  tlie  pro- 
hibition or  prohibitory  mandate  of  the  constitution ;  much  less  that  they  were 
engaged  in  the  unholy  purpose  of  enacting  laws  repugnant  thereto.  The  declara- 
tory and  amendatory  act  of  1833,  can  well  expend  the  whole  force  of  all  its  provi- 
sions, in  aiding  the  collection  of  the  tax  authorized  by  the  act  of  J 825,  and 
applicable  only  to  such  cases,  as  those  to  which  that  act  could  well  apply,  con- 
sistently witii  the  provisions  of  the  constitution.  No  new  tax  was  authorized  by 
the  act  of  1833,  but  only  more  adequate  provisions  to  insure  the  collection  of  the 
tax  authorized  by  the  act  of  1825,  and  declaratory  enactments  for  the  "  better  under- 
standing thereof." 

This  court  is  asked  to  repose  upon  a  legislative  construction  of  our  constitution; 
and  to  do  so,  tliey  must  give  a  construction  to  the  very  enactment  in  question, 
never  intended  by  its  framers.  Construction  is  to  be  based  upon  construction. 
And  not  only  was  this  act  of  1833  never  intended  as  a  construction  of  the  consti- 
tution, but  only  of  the  act  of  1825;  but  such  has  been  its  practical  inteipretation. 
The  journals  of  the  convention  and  legislature  of  Mississippi  not  being  here,  I  am 
driven  to  the  printed  book  of  our  opponents,  consisting  of  such  extracts  from 
journals  and  messages,  as  they  deem  favourable  to  their  cause,  but  which  show 
that  this  act  of  1833  has  never  been  applied  to  slaves  introduced  after  the  1st  of 
May,  1833,  although  it  may  properly  have  applied  to  the  cases,  comparatively  few 
in  number,  of  slaves  introduced  for  sale  prior  to  the  1st  of  May,  1833,  but  sold,  as 
they  lawfully  might  be,  in  such  cases,  subsequent  to  that  period.  Thus,  at  page 
29  of  this  pamphlet,  is  quoted  the  statementof  the  auditor. 

"  Amount  received  on  account  of  slaves  sold  as  merchandise  from 

the  1st  of  Jan.  1833,  to  3d  March,  1833,  inclusive,  .  $1065   17 

"  Do.  do.  from  4th  March,  1833,  to  19th  Nov.  1833,  $2ti25  13J' 

Does  this  show,  that  any  of  these  slaves,  thus  sold,  were  introduced  subsequent 
to  the  1st  of  May,  1833  .'  The  slaves  introduced  prior  to  that  date,  though  sold 
afterwards,  were  clearly  liable  to  the  tax  ;  and  if  the  tax  continued  to  be  collected 
on  all  slaves  imported  afterwards,  why  this  decrease  in  the  revenue  from  that 
source,  when  the  sales  were  increasing  ?  Why  was  $1000  collected  in  two  months 
from  these  sales  prior  to  the  4th  of  March,  1833,  and  but  $2625  in  nearly  nine 
months  afterwards.''  As  the  importations  and  soles  were  increasing  so  rapidly, 
why  this  decreasing  revenue.'  Can  any  other  reason  be  assigned  than  this,  that 
no  tax  was  collected  on  the  sales  of  slaves  introduced  after  the  1st  of  May,  1833, 
but  only  on  such  sales,  after  that  period,  as  were  made  of  slaves  before  introduced  ? 
But  again,  our  opponents  allege  that  the  principal  importations  and  sales  were 
made  in  the  years  1835  and  1836,  and  consequently  the  revenue  in  those  years 
should  have  greatly  increased  from  that  source.  Now,  at  page  45,  of  their  pam- 
phlet, the  auditor's  report  shows  that  the  amount  of  tax  was  as  follows  ; 

"  Amount  received  on  account  of  slaves  sold  as  merchandise  from 

20th  Jan.  1835,  to  28th  Feb.  1835,  inclusive,         .  ,       f  20  00 

«  Do.  do.  from  18th  March,  1835,  to  4th  Jan.  1836,  ...  166  40 


|186  40" 

Here  is  a  prodigious  decrease  in  the  revenue  this  year,  showing,  that  the  tax 
must  have  been  confined  to  the  few  slaves  sold  within  the  period  abovementioned, 
introduced  prior  to  the  1st  of  May,  1833. 

On  looking  at  the  next  year,  at  page  45  of  the  pamphlet,  we  find,  by  the 
auditor's  report : 


f 


t 


Groves  et  al.  v.  Slaughter. 


XV 


y  there- 
n,  upon 
pction  of 
viate  all 
the  act 
e  act  of 
tile  pro- 
■y  were 
declara- 
provi- 
25,  and 
ly,  con- 
zed  by 
of  the 
under- 


*'  Amount  received  on  account  of  slaves  sold  as  merchandise  from  6th 

Jan.  18S6,  to  29th  Feb.  1836,  inclusive,         .... 

"  Do.  from  1st  March,  1836,  to  4th  Jan.  1837,         .... 


$68  50 
82  00 

$160  60" 


Thus,  we  find  the  tax  reduced  the  last  twelve  months  to  $160.50,  and  the  last 
ten  months  to  iji82  ;  thus  continually  decreasing,  when  it  should  have  been  so 
vastly  au<;m(>nliiig.  No  reuson  can  be  assigned  fur  this,  except  that  the  unsold 
slaves  irilroduced  as  merchandise,  prior  to  Ist  May,  1833,  became  fewer  every 
year,  until,  in  the  lust  ten  months,  the  sale  of  four  slaves,  at  less  than  $1000  each, 
would  have  yielded,  ut  the  legal  rate  of  tax  of  2i  per  cent  on  the  sales,  more  than 
the  whole  aiiiuuiit  of  the  whole  tax  received  of  $82.  Now  this  was  the  period 
witiiin  wliich  tlie  plaintiffs  jitiide  thnr  sales  of  these  slaves,  the  amount  of  which 
sales  on  20th  Dec.  1836,  according  to  the  notes  sued  on,  being  $14,875,  the  tax  on 
which  sales  alone,  would  at  the  lawful  rale  have  amounted  to  $371,  being  not 
only  more  than  the  whole  tax  on  all  the  sales  in  1836,  but  more  than  on  all  the 
sales,  by  our  opponents'  own  showing,  from  20th  Jan.  1835  to  4th  Jan.  1837;  the 
totality  of  which  was,  as  we  have  seeti,  but  $347.50,  which  would  show  taxes  te- 
ceived  on  but  sixteen  slaves  in  these  two  years,  rated  at  less  than  $1000  each. 

Here,  by  their  own  book,  it  is  shown  that  no  tax  waj  paid  by  the  plaintiff  on 
the  sales  in  this  case,  and  that  their  counsel  in  this  court  have  been  greatly  de- 
ceived in  their  conjecture  to  the  contrary.  From  1st  May,  1833,  till  May  31st, 
1837,  at  least  forty  thousand  slaves  were  introduced  and  sold.  The  average  price 
for  working  slaves,  was  then  $1000  each,  on  a  credit,  and  such  generally  were  in- 
troduced by  the  traders;  and  the  total  price  would  thus  be  forty  millions  of  dollars, 
the  tax  on  which,  under  the  act  of  1833,  had  it  applied,  would  have  been  one  mil- 
lion of  dollars,  whereas  the  amount  really  received,  we  have  seen,  as  shown  by  our 
opponents,  was  less  than  four  thousand  dollars.  If  then  this  tax  was  payable  under 
the  act  of  1833,  the  negro  traders  (for  by  law  they  were  to  poy  the  tax,)  have  de- 
frauded the  state  of  Mississippi,  in  four  years,  of  one  million  of  dollars. 

From  1S30  till  1840,  the  slaves,  by  our  census,  increased  130,000,  and  as  the  im- 
portation commenced  chiefly  in  1833,  and  was  prohibited  in  May,  1837,  the  tax 
should  have  much  exceeded  one  million  of  dollars.  Now  is  it  credible,  that  if  this 
tax  were  due  under  the  act  of  1833,  that  it  would  never  have  been  assessed,  and 
that  less  than  $4000,  out  of  one  million,  would  have  been  collected.'  And  why 
was  not  the  prohibition  enforced  by  proper  pains  and  penalties?  In  1833  we  find 
the  legislature  endeavouring  to  amend  the  constitution,  so  as  to  get  clear  of  this 
prohibition  to  a  certain  extent.  The  sessions  of 'our  legislature  are  biennial.  The 
next  ses&ion  was  in  1834—5,  but  it  failed  on  account  of  a  disagreement  between  the 
two  houses,  as  to  the  alleged  illegal  organization  of  one  house,  and  was  prorogued 
by  the  governor.  The  next  legislature  did  prohibit,  in  May,  1837;  the  meeting  in 
May,  1837,  being  of  the  same  legislature  which  first  assembled  in  1836.  On  the 
14th  Jan.  1836,  the  following  entry  appears  on  the  journal  of  the  house:  "The 
committee  of  revisal  and  unfinished  business,  have  requested  me  to  report  as  part 
of  the  unfinished  Imsiness  of  last  session,  the  following  bills  and  resolutions 
namely:  '  a  bill  to  be  entitled  an  act  to  prohibit  the  introduction  of  slaves  into  this 
state  as  merchandise.'"  Page  of  Pamphlet,  42.  At  page  43,  (436  of  Journal,) 
Mr.  Gholson  called  up  this  bill,  but  no  final  and  direct  action  was  then  had  on  it. 
In  January,  1837,  the  bill  was  again  brought  up,  and  at  page  53  of  the  Pamphlets, 
(102  of  tlie  Journal,)  a  motion  to  postpone  it  indefinitely  failed,  by  ayes  13, 
noe.>9  56,  thus  showing  a  very  large  majority  to  be  in  favour  of  the  bill,  although 
they  could  not  agree  on  the  details  until  May,  1837,  when  the  present  prohibitory 
statute  was  passed  by  the  same  legislature  which  convened  in  1836.  And  here,  it 
is  worthy  of  remark,  that  Mr.  Gholson,  our  Federal  Judge,  who  has  represented  the 
state  with  so  much  ability,  both  at  the  capitol  of  the  state,  and  of  the  Union, 
served  throughout  all  these  successive  sessions  of  the  legislature,  from  1833  till 
1837,  and  took  a  leading  part  in  all  these  bills  connected  with  this  subject,  at  all 
these  periods ;  namely,  the  tax  bills,  the  bill  to  amend  the  constitution,  and  tha 


\^f%mm 


:  ) 


\\ 


xvi 


Groves  et  al.  v.  Slaughter. 


prohibition  bill,  repeatedly  serving  as  chairman  in  all  Iheae  seHtona.  Who  then 
more  competent  to  underslnnil  ull  these  bills,  and  to  decide  with  full  knowledge  of 
all  these  questions?  Yet  this  learned  jndge  of  our  federal  court  was  the  first  to 
decide  this  entire  question  in  our  favour,  as  quoted  in  the  Free  Trader  Gazette, 
produced  by  our  opponents.  Here  then  is  a  practical  construction  of  this  question, 
by  a  refusal  of  all  the  authoritifs  of  Mi88i88ip|)i  to  demand  or  receive  any  portion 
of  that  immense  revenue,  which  miijiit  have  been  derived  from  these  sales,  had 
they  been  regarded  as  legal,  and  it  is  a  construction  which  embraces  both  points  of 
the  controversy,  namely,  the  absolute  character  of  the  prohibition,  and  the  ille- 
gality of  the  sale,  as  well  as  of  the  inlroduciiim  for  sale.  Must  not  all  then  have 
known,  that  by  declining  to  reofive  tlifse  taxes,  the  state  proclaimed  the  illegality 
of  the  sales;  and  was  nut  the  |)laintiir  when  lie  made  the  sales  in  this  case,  without 
the  payment  of  any  ta.t,  a  will'ul  transgressor  of  this  great  constitutional  inter- 
dict ? 

But  independent  of  this  practical  construction  in  our  favour,  it  is  settled  that  an 
act  passed  for  "  the  better  understanding"  of  a  previous  law,  and  declaratory  of  its 
meaning,  must  be  connected  with  the  previous  act  of  20tli  February,  1825,  whose 
true  meanini''  it  expounds,  and  be  consiiiered  as  though  inserted  in  that  law,  and 
at  thai  date.  In  this  view  of  the  case,  the  terms  "  shall  bring"  need  not  be  con- 
strued skull  hate  brought,  although  such  construction  has  been  repeatedly  givinjto 
prevent  a  repugnance  between  a  statute  and  a  constitution,  or  between  two  statutes, 
or  to  obviate  injustice  or  a  violation  of  fundamental  principles;  but  these  words 
"shall  bring,"  in  the  declaratory  4th  section  of  the  act  of  1833,  must  be  referred 
to  the  20th  February,  1825,  the  date  of  the  act  expounded  so  as  to  impose  a  tax 
under  that  law  on  all  sales  by  citizens  (as  well  as  non-residents,)  of  slaves  lawfully 
introduced  after  that  date  for  sale  before  the  1st  May,  1833,  and  not  yet  sold,  or 
on  which  sales  the  taxes  hud  not  hem  paid.  This  was  the  obvious  intention  of  the 
legislature,  for  they  were  expounding  the  meaning  of  the  net  of  1825,  and  not  in- 
terpieting  the  constitution.  Thus  in  the  case  of  Pouget,  2  Price,  381,  where  the  act 
of  5;{  Geo.  3,  c.  33,  imposed  a  duty  on  hides,  of  9*.  4d.,  meaning  that  much  per  100 
weight,  but  neglecting  to  say  so,  when  a  subsequent  act  amendatory  of  the  former 
law,  declared  that  the  duty  of  9».  4d.  siiai.i.  bk  chargf.able  on  every  100  weight 
of  such  hides,  it  was  decided  that  the  new  declaratory  provision  must  be  taken  as 
a  part  of  the  former  law,  and  as  then  passed,  and  operating  from  that  date. 

The  court  said,  "  The  duty  in  this  instance  was,  in  fact,  imposed  by  the  first  act ; 
but  the  gross  mistake  of  the  omission  of  the  weight,  for  which  the  sum  expressed 
was  to  have  been  payable,  occasioned  the  amendment  made  by  the  subsequent  act; 
but  that  had  reference  to  the  former  statute  as  soon  as  it  passed,  and  they  must  be 
taken  together  as  if  they  were  one  and  the  same  act,  and  the  first  must  be  read  as 
containing  in  itself,  in  tcords,  the  amendment  svpplicd  by  the  last."  Now  let  the  act 
of  1823,  which  really  did  impose  this  tax  on  citizens  as  well  as  non-residents,  be 
read  as  "  containing  in  itself,  in  words,  the  amendment  supplied  for  the  better  un- 
derstanding thereof,"  by  the  4th  section  of  the  act  of  1833,  and  the  whole  diffi- 
culty disappears.  Perceiving  the  difliculty  in  which  thty  would  involve  the  legis- 
lature, by  asserting  that  they  had  violated  their  oatlis,  by  passing  a  law  opposed  to 
the  prohibition  or  prohibitory  mandate  of  the  constitution,  our  opponents  have 
suggested  that  when  this  tax  law  passed  through  tiie  two  houses,  they  believed  that 
their  amendment  proposed  at  the  preceding  session  to  change  this  mandate  or  pro- 
hibition into  a  grant  of  discretionary  power  to  themselves,  had  been  adopted  by  the 
people.  If  this  be  so,  and  the  legislature  acted  under  this  erroneous  impression, 
how  could  a  law  thus  passed  be  regarded  as  a  legislative  construction  of  this  clause 
of  the  constitution .''  But  if  this  law  did  authorize  the  introduction  of  slaves  for 
sale  after  the  1st  May,  1833,  why  had  the  legislature  nought  to  change  the  man- 
date or  interdict  of  the  constitution  into  a  mere  grant  of  discretionary  power,  if  as 
is  urged  they  already  possessed  that  power;  and  if  having  failed  to  effect  this  change 
in  the  constitution,  they  had  nevertheless  by  this  law  authorized  the  introduction 
of  slaves  as  merchandise,  could  such  an  act  be  called  a  legislative  exposition  of  the 
constitution .' 

The  framers  of  our  state  constitution  have  withheld  all  judicial  power  from  the 


f 


m 

W: 


Groves  et  al.  t    ,  '%ughter. 


XVil 


■ns.     Who  then 
I  knowle(l((e  of 
was  the  fir^t  to 
Prftder  Gazette, 
'f  tliis  queslion, 
ve  any  purtion 
hese  8iilt'8,  had 
8  both  points  of 
and  the  ille- 
>t  all  tlien  iiave 
d  the  illegality 
8  case,  without 
itutiunal  inter- 
nettled  that  an 
cliiratory  of  its 
y,  1825,  whose 
that  law,  and 
cd  not  be  con- 
itedly  jrivjn,  to 
'n  two  Btatutos, 
ut  these  words 
ust  be  referred 

0  impose  a  tax 
slaves  lawfully 
not  yet  sold,  or 

ntention  of  the 
25,  and  not  in- 
,  where  the  act 
t  much  per  100 
f  of  the  former 
ery  100  weight 
ist  be  taken  as 
it  date. 

y  the  first  act ; 
sum  expressed 
ubsequent  act; 
J  they  must  be 
lust  be  rfid  as 
*Jow  let  the  act 
n-residenls,  be 
the  better  un- 
he  whole  diffi- 
olve  the  legis- 
aw  opposed  to 
jponents  have 
y  believed  that 
andate  or  pro- 
idopted  by  the 
us  impression, 
of  this  clause 
of  slaves  for 
nge  the  man- 
y  power,  if  as 
ct  this  change 

1  introduction 
>osition  of  the 

>wer  from  the 


legislature.  They  have  declar«d, "  the  judicial  power  of  thin  state  shall  be  vested" 
in  the  courts  of  the  state;  and  that  "the  poweis  of  the  government  of  the  state  of 
Mississippi  shall  be  divided  into  three  distinct  departments,  and  each  of  them  con- 
fided to  a  separate  body  of  magistracy.;  to  wit,  those  which  are  legislative  to  one, 
those  which  are  judicial  to  another,  and  those  which  are  executive  to  another.  No 
person  or  collection  of  persons,  being  one  of  these  departments,  shall  exercise  any 
power  belonging  to  either  of  the  othertt,  except  in  the  instances  hereinafter  expressly 
directed  or  pehnitted."  If  then,  as  uU  admit,  to  expound  a  constitution  be  a  judi- 
cial power,  the  legislature  was  forbidden  to  exercise  it,  and  so  was  the  executive. 
It  was  confided  to  the  judiciary,  we  have  their  construction  ;  and  an  imaginary  and 
conjectural  legislative  or  executive  construction  is  set  up  in  opposition  to  an  expo- 
sition of  the  constitution,  by  the  very  tribunal  to  whom  its  interpretation  was  con- 
fided by  its  framers.  If  then,  a  construction  by  the  legislature  could  be  quoted,  I 
deny  their  jurisdiction;  and  pointing  to  the  constitution  of  our  state,  declare  that  it 
is  there  expressly  withheld.  7)ut  an  executive  construction  is  relied  en  by  our 
opponents.  JVonc  such  exists ;  but  what  think  our  three  distinguished  opponents  of 
executive  construction  .'  Shall  I  quote  their  eloquent  denunciations  of  such  abuse 
of  power  .''  No,  I  will  spare  them  the  contrast  with  their  present  argument;  but  I 
will  say,  that  the  government  which  deliberately  supersedes  judicial  by  legislative 
or  executive  construction,  has  already  sunk  into  despotism.  It  has  combined  in 
one  department  two  out  of  the  three  great  powers  of  government;  the  third  will 
assuredly  follow ;  and  the  centralization  of  all  these  powers  in  the  legislature  or 
executive,  in  the  opinion  of  Mr.  JetFerson,  in  his  Notes  on  Virginia,  page  195, 
"  is  precisely  the  definition  of  a  despotic  government."  We  shall  see  in  the  pro- 
gress of  this  discussion,  that,  by  the  highest  courts  of  England,  no  regard  is  paid 
to  a  construction  of  the  laws  by  the  king,  or  the  king  in  council.  But  at  one  time 
a  British  judge  declared  from  the  bench,  "  all  power  centres  in  the  king,"  and  the 
laws  were  overthrown  by  "  twelve  men  in  scarlet,"  taking  "  royal  auricular 
opinions"  for  their  guide:  but  for  more  than  a  century,  executive  construction  has 
had  no  weight  with  British  judges.  1  need  scarcely  appeal  to  this  court  to  dis- 
regard executive  construction;  nor  say  to  them,  that  if  they  do  not,  the  day  will 
have  arrived  wlien  congressional  or  presidential  construction  will  trample  down 
the  high  powers  of  this  tribunal  in  exercising  its  great  constitutional  function  of 
expounding  in  the  lust  resort  the  laws  and  constitution  of  the  Union.  The  volumes 
of  your  decision  will  be  thrown  aside,  and  the  exposition  of  the  law  and  the  con- 
stitution will  be  looked  for  in  executive  messages  and  congressional  enactments. 
If  then  there  were  a  legi.ilntive  and  executive  construction  on  the  one  side,  and 
that  of  the  highest  court  of  the  state  on  the  other,  which  shall  prevail .'  To  whom 
is  the  power  assigned  by  the  constitution  of  the  state?  And  this  court  will  not  dis- 
regard the  distribution  of  powers  as  therein  delegated  to  the  several  departments  of 
goveriiiuent. 

The  next  question  is,  can  the  contract  for  the  sale  of  these  slaves  be  maintoined, 
if  the  clause  in  question  be  a  prohibition  of  the  introduction  fursale.''  Assuming 
this  as  established,  the  clause  in  question  would  prohibit  the  introduction  of  slaves 
as  merchandise  or  for  sale.  The  introduction  being  thus  prohibited,  if  the  sale  be 
sanctioned,  the  clause  would  read  thus:  You  shall  not  introduce  slaves  into  this 
stJrte  as  mercliandise  or  for  sale,  but  you,  the  importer,  may  make  merchandise  of 
them,  or  sell  them  to  any  one  as  soon  as  they  are  landed.  Would  not  such  lan- 
guage be  strangely  repugnant  and  contradictory  ?  Would  it  not  seem  as  though 
the  convention  had  designed  to  render  their  own  provision  inoperative  and  nuga- 
tory .''  Could  the  importer  sell  the  thing  he  was  forbidden  to  introduce  for  sale  ? 
Could  he  make  merchandise  of  the  very  thing  he  was  prohibited  from  introducing  as 
merchandise  .'  The  object  prohibited  wus  not  merely  the  introduction  of  slaves,  but 
their  introduction  as  merchandise  or  for  nalc.  Now,  was  the  object  prohibited,  and 
yet  the  sale  permitted  .-*  To  introduce  the  slaves  with  intent  to  sell  is  criminal,  but 
to  carry  that  criminal  intention  into  effect,  is  declared  to  be  authorized  and  invited 
by  the  constitution.  Can  the  intent  be  criminal,  and  yet  the  fulfilment  of  the  evil 
intention  perfectly  lawful.'  To  maintain  this  position,  is  to  reverse  the  rule  of  law 
and  morals,  which  always  regards  the  execution  of  the  evil  intention,  as  more 
u  2 


XVUI 


Groves  et  al.  v.  Slaughter. 


ii 


1-   i) 


ciiminal  than  the  intention  itielf.  If  the  sale  crowns  and  completes  the  unlawful 
purpose,  if  it  executes  the  illegal  intention,  if  it  consuuiniates  the  violation  of  the 
law,  if  it  enables  the  tranggressor  to  obtain  the  end  and  object  prohibited,  and  reap 
tiie  fruits  of  his  transgression,  it  iniiitt  be  unlawful.  To  etlectuate  the  object  and  in- 
tention of  the  law  is  tiie  grnat  rule  in  expounding  laws  nnd  constitutions. 

Now  the  inter-state  slave  trade,  as  carried  on  by  traders  in  slaves  as  merchandise, 
was  the  thing  designed  to  be  prohibited.  And  yet  this  very  prohibited  tratKc,  by 
a  verb:il  criticism  on  the  words,  overlooking  tiie  object  of  the  constitution,  is  in  fact 
encouraged,  if  the  trader  niny  sell  tiie  slaves  introduced  as  merchandise.  This 
court  liave  said,  that  a  fraud  upon  a  statute,  is  a  violation  of  the  statute;  that  an 
evasion  of  tiio  constitution,  is  a  violation  of  the  constitution;  nnd  is  not  this  con- 
struction un  evasion  by  the  slave  traders  of  the  constitution  of  Mississippi  P  Lord 
Coke,  ill  Heyden's  case,  3  Coke,  7,  declares,  that  the  true  rule  in  construing  sta- 
tutes is  so  to  interpret  as  "to  suppress  inventions  and  evasions  for  continuance  of 
the  inLschicJ',  and  pro  privato  cnmiiiodo,  nnd  to  add  force  and  life  to  the  cure  and 
remedy,  according  to  the  true  intent  of  the  inukerH  of  the  act,  pro  bono  pulilico." 
The  clauses  of  a  statute  are  to  be  construed  in  their  popular  signiiication,  and  this 
is  more  pre-eminently  the  gieat  rule  in  regard  to  a  slate  constitution.  Who  then 
but  an  acinic  critic,  on  reading  this  clause,  would  doubt  as  to  the  object  designed  to 
be  prohibited  ?  To  whom  of  the  people  at  large  would  the  subtle  distinciiuii  occur, 
that  slaves  could  not  be  introduced  as  merchandise  or  for  sale,  but  that  the  importer 
was  authorized  to  sell  at  onco  these  slaves  that  could  not  thus  be  introduced  for 
sale.'  The  terms  of  the  constitution  are  peculiar  and  comprehensive.  These  slaves 
are  not  only  forbidden  to  be  introduced  "for  sale,"  but  also  "as  merchandise." 
Merchandise  means  vcndihir,  articles.  Thest'  slaves  then  cannot  be  imported  us 
vendililc  articles.  How  then  can  they  lie  rendered  vendible  articles  within  the  state, 
when  they  cannot  be  landed  as  such  within  its  limits  .'  In  Brown  v.  State  of  Mary- 
land, 12  Wheat.  43S),  the  question  was  whether  a  state  could  impose  a  tax  upcm  the 
sale  by  the  importer  of  articles  imported  into  a  state  for  sale.  The  court  decided 
that  tlie  riglit  of  the  importer  to  introduce  tlie  goods  tree  of  n  state  tax,  did  embrace 
the  subsequent  right  of  sale  free  of  such  tax  by  the  importer.  In  delivering  the 
opinion  of  llie  court.  Chief  Justice  Marshall  says:  "  There  is  no  ditference  in  effect 
between  a  power  to  prohibit  the  sale  of  an  article,  nnd  the  power  to  proiiihit  its  in- 
troduction into  the  country.  The  one  woold  he  a  necessary  consequence  of  the 
other.  No  goods  would  be  imported,  if  none  could  be  sold."  The  mere  prohibition 
then  of  the  introduction  of  slaves  into  a  country,  would  render  the  subsequent  sale 
invalid,  and  if  so,  how  much  stronger  is  the  inhibition  of  the  sale,  when  the  prohi- 
bition is  of  the  introduction  for  sale.  Why  prohibit  the  introduction  for  sale,  if  the 
subsequent  sale  is  authorized?  The  sale  is  the  avowed  object  of  the  introduction 
in  this  case,  and  without  the  authority  to  sell,  there  would  be  no  introduction  for 
sale,  and  thus  the  law  prohibiting  the  introduction  would  be  enforced  ;  but  by  the 
construction  of  our  opponents,  the  sale  is  authorized,  and  the  importation  for  sale 
so  far  encouraged  and  invited.  But  no  such  interpretction  nmst  be  given  as  will 
defeat  the  object  of  the  law,  or  tend  to  prevent  its  practical  operation.  1st  Story's 
Com.  411,  and  Chief  Justice  Marshall  declares,  6  (/ranch,  314,  that  "The  spirit  as 
well  as  the  letter  of  the  statute  must  be  respected,  nnd  where  the  whole  context  of 
the  law  sliows  a  particular  intent  in  the  legisliiture  to  effect  a  certain  object,  some 
degree  of  implication  may  be  called  in  to  aid  that  intent."  The  rule  is  that  "The 
words  of  a  statute  are  to  be  taken  in  their  ordinary  signification  and  import,  and  re- 
gard is  to  be  had  to  their  general  nnd  popular  sense."  Dwaris  on  Statutes,  702. 
"  The  sense  and  spirit  of  an  act,  however  its  scope  and  intention,  are  primarily  to 
be  regarded  in  the  construction  of  statutes,  and  it  matters  not  that  the  terms  used 
by  the  legislature  in  delivering  its  commands  are  not  the  most  apt  to  express  its 
meaning,  provided  the  object  is  plain  and  intelligible,  and  expressed  with  sufficient 
distinctness  to  enable  the  judges  to  collect  it  from  anij  part  of  the  act.  The  object 
once  understood,  judges  are  so  to  construe  an  act  as  to  suppress  the  mischief  and 
advance  the  remedy."  lb.  703,  4,  7,  18.  And  the  author  adds :  "A  statute  may 
be  extended  by  construction  to  other  cases  within  the  same  mischief  and  occasion 
of  the  act,  though  not  expressly  within  the  words."     If  the  legalizing  of  the  gale 


Grovea  et  al,  v.  Slaughter. 


sUt 


would  encourage  the  introduction  for  sale,  it  ii  within  "  the  miichief  and  occasion 
of  the  act;"  it  is  within  iti  "Rpirit,"  "scope"  and  "object;"  and  thurefore  as  much 
prohiliited  as  though  "  expressly  within  the  words  of  the  act."  "  No  construOtiun  of  a 
given  power  is  to  be  allowed  which  plainly  defeats  or  impaira  its  avowed  ubjecta." 
Story's  Com.  411.  "  A  statute  made  pro  bono  publico  shall  be  construed  in  such  a 
manner  th.it  it  may  as  far  us  possible  attain  titt  r.ntl  proposed."  Dwar.  722.  As  to  a 
ilucHtiori  vvliul  was  within  the  prohibition  of  a  certain  law,  the  court  say,  "  It  is  by 
no  nieiiriH  unusual  in  construing  a  remedial  statute,  to  extend  the  enacting  words 
beyond  llieir  natural  import  and  etfect,  in  order  to  include  cases  within  the  same 
mischief."  Dwur.  734,  Y  and  J.'s  196,  215,  and  the  principle  is  extended  to  enlarge 
the  poiiuy  of  u  penal  statute,  not  so  as  to  intlicl  the  penalty,  but  to  avoid  the  contract. 
Uwar.  7.52.  "  Wherever  a  statute  gives  or  provides  any  thing,  the  ccunnion  law 
providfH  all  necessary  remedies  and  requisiles  "  Dwar.  6<>2.  "  Every  thing  ne> 
cesiiary  to  the  making  it  effectual  is  given  by  implication."  Dwar.  652.  2  Inst. 
806.  12  Hep.  130,  131.  "  Quando  aliquid  prohibetur,  prohibetur  et  omne,  per  quod 
devenitur  ad  illud."  Dwar.  663.  "  Whenever  the  provision  of  a  statute  is  gene- 
ral, every  thing  which  is  necessary  to  make  su(;li  provision  elfectual  is  supplied  by 
the  f.oimnon  law."  Dwar.  663.  1  In.  235.  2  lb.  222.  Bacon,  T.  Slat.  "What- 
ever enters  into  the  reason  of  the  law,  enters  into  the  law  itself."  Dwar.  665. 
Ratio  est  anima  legis.  "  Laws  and  acts  wliich  tend  to  public  utility  should  receive 
the  mo.st  liberal  and  benign  interpretation  to  etiect  the  object  intended  or  derlared, 
ut  res  inagis  vuleat  quam  periat."  Bald.  Con.  Views,  8.  Bl.  Com.  89.  "  Courts 
will  lo<ik  to  the  provisions  of  a  law  to  discern  its  objects  to  meet  its  intentions  at  the 
time  it  was  made;  it  will  be  sougiit  in  the  cause  and  necessity  of  making  the  law  ; 
the  meaning  thus  extracted,  will  be  takei>  to  be  the  law  intended,  as  fully  as  if  ex- 
pressed in  its  letter."  lb.  9.  1  Wh.  121.  4  Peters,  432.  If  then,  as  is  obvious, 
"  the  object  of  the  law,"  nanjely  to  prevent  the  introduction  of  slaves  for  sale,  will 
be  frustrated  by  legalizing  the  sale,  the  court  "  will  not  suffer  the  law  to  be  defeat- 
ed" by  ;idoptlng  such  n  construction,  but  will  so  ex[>ound  the  law  as  to  "suppress 
the  mischief  and  advance  the  remedy."    lb.  9,  11.     Co.  72.     1  Bl.  Com.  87. 

The  clause  which  prohibited  the  introduction  of  slaves  for  sale,  never  could  have 
intended  to  defeat  itself,  by  legalizing  the  sale  of  slaves  thus  unlawfully  introduced 
for  siili',  and  thus  encouraging  and  inviting  the  violation  of  the  law,  by  making  it 
profil.ible  to  disregard  its  provisions.  But  it  has  been  said  this  prohibition  must  be 
strictly  construed.  Why  so?  It  is  not  a  penal  statute,  and  if  it  were,  it  should 
only  be  construed  strictly  when  operating  on  the  offender  in  exacting  the  penalty ; 
but  when  it  acts  upon  the  contract,  it  must  be  liberally  construed,  so  as  to  vacate 
tlie  contract,  if  within  the  mischief  designed  to  bet  remedied,  though  not  within 
the  letter  of  the  law.  Thus,  it  is  declared  by  Blackstone  :  "  But  this  difference  ia 
here  to  be  taken  wlien  tha  statute  acts  u|)on  the  offender  and  inflicts  a  penalty,  as 
the  pillory  or  a  fine,  it  is  there  to  be  tak(>n  strictly,  but  when  the  statute  acts  upon 
the  offence  by  setting  aside  the  fraudulent  transaction,  here  it  is  to  be  construed 
liberally."  1  Chitty's  Black.  60.  In  a  note  it  is  stilted  as  follows,  with  a  reference 
to  the  liigliest  authority  :  "As  the  statute  against  gaming,  which  enables  a  loser 
at  play  to  the  amount  often  pounds  at  one  sitting  to  recover  it  back  within  three 
months;  the  act  also  provides  a  penalty  against  gaining  to  the  same  amount  at  one 
sitting.  And  the  court  has  said  in  a  case  where  the  play  was  only  interrupted  by 
the  dinner  hour,  for  the  purpose  of  recovering  the  money  lost,  they  would  hold 
this  to  be  one  sitting,  but  as  against  a  cnmuinn  informer,  suing  for  the  penalty, 
they  would  hold  it  to  be  two  sittings."  1  Chit.  Black.  60,  note,  and  2  Black.  Rep. 
1226.  Here,  even  in  a  penal  law,  the  same  words  are  construed  strictly  when 
they  act  on  the  offender,  and  liberally  when  they  act  on  the  contract.  So  in  this 
case,  were  a  penalty  even  annexed  to  the  prohil>ition,  the  law  would  be  construed 
strictly  when  the  penalty  was  demanded,  but  liberally  wlien  a  contract  is  sought 
to  be  enforced  against  the  spirit  or  object  of  the  |)rohibition.  But  how  much 
stronger  is  the  present  case.''  If  the  first  point  be  with  us,  the  constitution  prohi- 
bited the  introduction  of  these  slaves  for  sale  or  as  merchandise,  and  as  no  penalty 
was  attached  to  the  prohibition,  would  not  the  provision  be  enlirehj  inoperative,  if 
the  contract  of  sale  could  and  must  be  enforced  by  the  judicial  tribunals.'     The 


XX 


Oro9et  et  al,  v.  Slaughler» 


11 


object  of  tha  conititutional  prohibition  wai  to  render  the  trafflo  unlawftil,  ao  that 
no  contract  could  be  enforced  in  violation  of  the  prohibition,  but  the  penal  aana- 
tione  by  fme  and  impriioninent  might  well  be  lef\  to  aubieiiuent  legielation.  In 
the  cdie  of  the  U.  8.  Dank  v.  Owen«,  2  I'etere,  537,  it  ie  expreaily  decided  by  thia 
court,  that  law*  must  be  atriutly  conitrued  when  the  penalty  it  exacted,  but  libe- 
rally in  vacating  the  contract. 

The  doctrine  which  repudiateii  contract!  againit  public  policy  or  good  morali, 
long  preceded  the  common  law  of  Kii^land,  and  wai  incorporated  into  that  ayi- 
tem  in  in  the  civil  law.  In  the  note  8.  to  1  Fonblunqiie's  Kqtiity,  Book  I.  lec.  4, 
page  IHtf,  it  i*  etuted,  "  Pacta  quu)  contra  legeit  conititulionoii<|ue  vel  contra  bonoa 
raorei  niillam  vim  habere,  indubilati  juria  est."  Code,  lib.  2,  tit.  3,  1,  6,  Thia 
rule  of  the  civil  law  ie  drawn  from  the  pririciplee  of  universal  juhUcb;  which,  aim- 
ing ut  tliH  prevention  of  wron|^,  proliiliitH  u(rreeiiientM  which  would  lead  to  or  tncou- 
rage  it.  To  introduce,  then,  HiaveH  into  MiMMJiiHippi  for  sale,  waa  prohibited  by  the 
coiietilution,  and  wan  therefore  wroiij;,  luiluwful  and  immoral;  and  none  will  deny, 
that  to  ieijalize  the  contract  of  Hale  for  mluveii  tliim  unlawfully  introduced,  would 
encourage  tiie  introduction  for  Bale;  ami  if  ho,  upon  llie  authority  above  tpioted,  luch 
contract  wuuld  be  void.  "  ConHiderationn  agaiiott  the  policy  of  the  common  law, 
or  ag.iiiint  the  proviHions  of  a  Htatute,  or  iigainsit  the  policy  of  jumice,  or  the  rule* 
and  claims  of  decency,  or  the  dictaten  of  morality,  are  void  in  law  and  equity."  lb. 
note  Y  189.  And  here  I  maintain,  that  where  a  contra(;t  ia  nguimit  the  policy  of 
a  state,  or  against  good  moraln,  or  delrimi'iilai  to  the  public  interest,  or  iigainst  the 
peace,  security  or  welfare  of  u  state,  or  tending  to  encourage  a  violation  of  the 
laws  or  policy  of  a  state,  or  the  prohibition  of  a  statute,  it  Ih  void;  and  if  it  is  with- 
in the  spirit,  scope  or  intention  of  the  act,  (though  not  within  its  words,)  or  within 
the  object  designed  to  be  promoted  or  iniHciilef  suppressed,  it  is  also  void;  and 
the  most  liberal  construction  will  be  given  to  the  law,  and  every  fair  im|ilieution 
\v  .11  be  allowed,  to  prevent  a  defeat  of  tliu  full  ojieration  of  the  statute.  Thus  it  is 
declared  by  the  court,  in  the  leading  cnse  of  ^Iilchell  v.  Smith,  Ist  Din.  110,  4th 
Yates,  84,  that  contracts  are  void  which  "  tcnil  lo  defeat  the  Ivgislativr.  proriniiins  for 
the  security  and  peace  of  the  community,  though  not  made  void  liij  ntututcs;"  or 
which  tend  "<o  enrourage  unlawful  acts  or  omissions,"  or  which  nre  against  prin- 
ciples of  sound  polii'f;  "soacoiitractuAoHf  a  matter  prohibited  by  statute  is  unlaw- 
ful and  a  void  contrmt,  although  the  act  does  not  expressly  say  so." — Courts  ''v\iil 
not  assist  an  illegal  transaction  in  any  respect."  It  is  "immoral  to  violate  the  l.iwa 
of  a  country,"  and  the  contract  will  not  be  enforced  if  illegal,  though  to  refuse  to 
enforce  it  is  "  contrary  to  real  justice  as  between  the  parties;"  or  if  the  contract 
"  militate  "  against  the  "rights"  or  "peace"  of  a  state,  or  if  against  the  policy  of 
"self-preservation,"  or  if  "against  the  maxims  of  sound  policy"  though  "not 
against  the  rules  of  morality,"  or  if  "repugnant  to  the  welfare  of  the  state;" — so 
if  against  "political  arguments"  or  "  public  benefit  and  convenience."  So  the 
court  declared  that  "none  of  the  acts  againt-t  smuggling  transactions  declare  any 
of  the  contracts  for  goods  purchased  for  the  p,  -pose  of  sniugj^ling,  to  be  void  ;  the 
decisions  are  grounded  on  principles  of  public  policy  alone,"  and,  although  it  be 
"the  case  of  a  just  debt  as  between  the  parties."  4  Yates,  34.  The  court  decided, 
that  a  note  given  for  the  sale  of  land,  under  the  Connecticut  title,  was  void,  although 
the  act  of  1795  only  inflicted  a  penalty  on  a  coinbinalio'x  or  conspirary  to  convey  or 
settle  lands  under  such  a  title,  but  did  not  declare  the  contract  void  or  prohibit  the 
sale,  as  did  the  subsequent  act  of  1802,  nUhough  the  defendant  was  in  the  occu- 
pancy of  the  land  under  the  sale,  and  every  argument  was  urged  which  has  been 
used  in  this  case.  And  if  the  purchase  money  unpaid  by  the  vendor  can  be  re- 
covered, could  not  the  vendee,  on  tender  of  the  pui>,}<Dse  money  on  a  contract  for 
ealc;  enforce  the  delivery  to  him  of  the  slaves  introduce  i  for  sale  ?  Surely  he  could, 
"  for  the  remedies  must  be  mutual  or  not  at  all."  1  Bin  i  Vl.  In  Seidenbender  v. 
Charles,  4  Serg.  and  Rawle,  151,  a  land  sale  by  ticke's  ii?).. .  'it  b''  'ks  was  r  Id  to 
be  within  the  policy  of  the  law  against  lotteries,  and  a  noU  given  ^  i^  ilie  sale  of  a  lot 
of  ground  under  such  a  lottery  was  held  void,  althoU'-;;i  the  lii'*  to  the  lot  vi.is  con- 
ceded to  be  valid,  and  the  justice  of  the  case  with  the  idr^'nlii'.',  urd  the  sales  iiad  not 
been  declared  void  by  the  law.     In  8d  T.  R.  17,  it  wat  uecided,  that  a  promise  of  a 


tlroeca  et  al.  v.  Slauf(hUr. 


XXI 


friend  of  a  bankrupt  on  hiii  «xainin(ition  to  pn^r  all  gumii  he,  th«  bnnkrup'-  '  ul  not 
iiccoiiiiti-d  t'ur,  ii'  not  ttxaniined  un  to  iIiohh  huiiih,  im  void,  um  iiKuinHt  tlit)  pili'-y  of 
th«  Imiikriipl  lawn,  llioU({li  not  <o  d«('l»r«il  l>y  tlioHt*  lawn,  nor  I'inliriiced  witlim  ii*«ir 
pruviriionii,  on  Ihu  ((round  tliiil  to  (•nlorci*  nuc.ii  coniriirlH  would  bt<  "coiiirarv  lo  ihf 
spirit  lit  lliH  liiiiikrupt  liiw»,  "  mid  tliiit  by  hucIi  c  nrorceniiMit  "(Mim  of  tlio  nff.ii  ftt 
ot' the  iMiikriipt  l.iWH  iri>:ilil  liv  (liJ'fiUtil'  by  prt!v«ntiiit(y'M//  exantinutioii  ol'ul  .  ink- 
ruptM  1)11  oulli.  In  (.'ruii{  v.  Htute  of  MiNHouri,  t  >'i-tt>rH,  110,  it  waH  dc xlcd  bj 
tluM  rourt,  Ibiit  It  nolit  )(ivt<n  lor  bilin  ot  crt-dit  ol' ii  Hlutt<,  Uiu'ifd  to  tb*t  dtt  irtant, 
WUH  vmd,  iilthiiiii(h  tbH  dfl'cndiint  iiiiiy  biivt^  iciilizvid  hill  vuIiik  tor  tiie  bilJM,  tha 
cuntriii'.i  liiMn}r  williin  lliu  probdiitory  policy  of  tliiit  cliiiisn  of  lln*  conHiitiition  ot 
till'  Umti'd  SiultH,  wbicli  decliiri'ii  tbat  no  uliitf  uliiill  niiit  hilh  uj'iriiltl.  'Ibt-re  was 
notliiiii;;  in  tbiii  conHtitiitional  probiliilion  dfclarinii;  Hiicb  conliar.tH  void,  nor  any 
tliiii;;  III  wordH  l'orbiddiii){  tbu  loan  of  miii:Ii  bilU  ;  but,  nri  iiplioldini;  ii  contract  for 
tlifii' loan  would  fiicoura^f  tbeir  tiiiiinioi.  by  lu-  Hlali",  tbc  contract  w:»h  dci^lared 
invalid.  Ill  di-liverin;r  tin-  opinion  >*'|)ii<  couri  in  tbii*  caMt!,diit't  JiiHticf  iM;irHliall 
uskt'd  till'  toilowin^  i|iii'stion :  "  lli  i  '.n  Ixm.ii^  or  circulation  ot' Cfrtiticales  of 
thin  or  liny  other  dfHiTiptioii  bdiu  ^iruliiluteu  by  a  niatute  of  MiMRonri,  could  a  Huit 
liaVH  bt'fii  inaintaiiifd  in  tilt:  CO  tto  '*  that  Htule,  on  a  nott- ^ivl■ll  in  RoiiHiderntion 
of  tlic  iindiibitcd  ciTtilicf '".'  It  ii  co.  ..  not,  are  tlif  pidbibiliond  of  tli«  ronnlilution 
to  be  lii'ld  It.ss  nam  i  lliii'i  Mi'  lo  of  a  ntal  •  law.'"  And  if  MUch  a  claUMe  in  tb»'  con- 
stitution ot  the  Union  n!<.iitfd  void  n  ciuitract  for  the  loan  of  tlnme  certificates, 
how  iniicii  BtroiiHHr  the  implication  u'raiittt  the  Hale  in  this  caHe?  And  here,  upon 
the  first  branch  of  Ihe  ipiestion.  let  me  auk,  if  the  laniriiajre  in  a  statute  of  Mindis- 
Mi|)|)i  "Hliiill  1)0  proliibiltd  from  and  after  the  Ist  of  May,  1H:J3,"  would  be  a  pro- 
hibition, iir<>  Uie  Hunie  terinii  and  woida  "of  the  constitution  to  be  held  leHit  sacred 
than  those  of  u  state  law.'" 

In  the  case  of  Hunt  v.  Knickerbocker,  5  John.  327,  it  was  decided,  that  a  con- 
tract for  tliB  sale  in  r>n:w  York,  of  lickets  in  a  public  lottery  of  Connecticut,  antho- 
rizi'd  by  the  laws  of  that  stale,  was  illejral,  and  the  money  not  recoverable,  though 
a  valiiiiblu  consideration  may  have  passed  to  the  det'endant,  because  it  was  against 
the  policy  of  the  law  of  New  York,  I'orbiddinir  prirulr  lotteries.  Here  was  a  case 
clearly  not  within  the  words  of  the  act,  but  it  was  reijarded  njrainst  the  policy  and 
spirit  ot"  the  act,  "and  to  lej^ali/.e  the  sale  would  be  jiroductive  of  many  of  the  mis- 
chiet's  contemplated  by  the  lejriHlaliire ;"  and  the  court  also  say  that  "a  contiact 
wliicii  in  itn  erjxution,  contravenes  the  policy  and  spirit  of  a  statute,  is  equally  void 
as  if  m:ide  us  against  its  positive  provisions." 

In  Sharp  v.  Teese,  4  Halsted.  !J52,  the  court  held,  that  "a  note  given  by  an 
insolvent  debtor  to  two  of  his  creditors,  in  consideration  of  their  withdrawinir  their 
opposition  ti)  his  discharire  under  the  insolvent  act,  is  void,  it  being  against  the 
policy  of  the  insolvent  law."  In  this  ca.se  the  debt  tor  which  the  note  was  given, 
was  justly  due,  and  there  was  not  one  word  in  the  law  declaring  such  a  contract 
void,  lis  will  appear  in  the  reasons  given  by  the  court,  at  page  354.  They  say  the 
policy  of  the  law  favours  a  full  iiiiil  fair  disclosure,  and  equal  division  of  the  pro- 
perty among  all  the  creditors,  and  add, '-any  transac  on  or  arrangement  wliich 
teii'ls  to  defeat  either  of  these  purposes,  is  inconsistent,  with  the  policy  of  the  law. 
ihit  .1  •iii'n,  to  contravene  tlic  poli<  of  a  jiuhlir  statiitr,  is  illegal.  Nor  is  it  neces- 
Hary  I'l  m"!' r  it  so  tli  '  j  statute  should  contain  un  express  prohibition  of  sucit 
■iti  i\  ■'.      '  always  tonlains  an  implied  prohibition." 

Tlie  same  court  decided  that  no  action  can  be  maintained  on  a  contract  which 
"contravenes  the  policy  of  an  act  of  congress."  '»  Hal.  80.  The  court  say  "  many 
contracts  which  are  not  atruinst  moral itt),  am  still  void  as  being  against  the  maxims 
of  sound  policy;"  that  "if  the  consideration  be  against  the  public  policy,  it  is  in- 
suflicienl  to  support  the  contract;"  "it  is  a  general  principle,  that  all  obligations 
for  any  matter,  operating  against  the  public  policy  and  interests  of  the  nation  are 
void."      See  also  2  Southard,  75(i,  7W3. 

In  Nichols  V.  Ruggles,  3  Day,  145,  it  was  dofided,  that  "  a  contract  to  reprint 
any  literary  work  in  violation  of  a  copy-right  secured  to  a  third  person  is  void: 
and  the  printer  who  executes  such  contract,  with  a  knowledge  of  the  riglil^  of  such 
third  peroon,  can  recover  nothing  for  his  labour."     The  contract  between  the  two 


XXll 


Groves  et  al.  v.  Slaughter. 


persons  in  this  case,  was  regarded  as  repugnant  to  the  policy  of  the  copy-right 
law  of  congress,  though  nothing  in  that  act  avoided  such  a  contract.  And  in  Mar- 
chant  V.  Evans,  8  Taunt.  142,  it  was  held,  that  no  recovery  can  be  had  for  print- 
ing a  newspaper  whose  publisher  does  not  first  make  the  affidavit  directed  by  the 
act,  though  the  act  does  not  avoid  the  contract.  And  in  Stephens  v.  Robinson, 
2  Crotn.  and  Jer.  209,  the  court  decided  under  the  same  statute,  that  tliete  could 
be  no  recovery  by  the  printer,  where  the  affidavit  as  to  the  proprietorship  was 
false,  either  for  work  and  labour  done,  for  money  paid,  or  even  "  for  printing 
and  circulating  cards  advertising  the  paper."  The  court  said,  if  we  permitted  a 
recovery,  it  would  defeat  the  policy  of  the  law,  by  enabling  "irresponsible  persons 
to  stand  forward  as  publishers,"  instead  of  the  real  proprietors.  See  Roby  v.  West, 
4  N.  Hamp.  285. 

In  the  late  case  of  Spurgeon  v.  M'Elwain,  6  Ohio  Rep.  442,  it  was  decided 
that  "  keeping  nine-pin  alleys  in  a  town,  by  a  keeper  of  a  public  house,  being  unlaw- 
ful, the  (carpenter,)  builder  of  such  alley  cannot  recover  therefor  on  general  as- 
sumpsit." There  it  was  urged,  as  was  the  fact,  that  the  carpenter  had  no  interest 
in  the  alley,  or  in  its  profits,  keeping,  or  use,  and  there  was  not  a  word  in  the  law 
avoiding  the  contract,  or  declaring  the  huilding  such  a  house  unlawful,  but  only 
the  keeping  of  it.  The  court  said,  "The  statute  forbids  under  a  penalty,  any 
tavern  keeper,  or  retailer,  from  keeping  or  permitting  to  be  kept,  a  nine-pin  alley, 
in  the  building  occupied  for  that  purpose ;  can  a  carpenter,  knowing  the  object, 
recover  the  price  of  erecting  it.'" 

"  The  principle  is  of  general  application,  that  contracts  contrary  to  sound  morals, 
public  poliry,  or  forbidden  by  law,  will  not  be  executed  by  courts  of  justice." 
And  upon  these  principles,  and  the  policy  of  this  statute,  the  court  decided  that 
there  could  be  no  recovery,  because  the  plaintiff  had  violated  the  policy  of  the  law 
in  building  a  nine-pin  alley  for  a  third  person,  in  a  state  where  no  such  alley  could 
be  ke/ft,  and  tiierefore  could  not  recover  : — as  here  in  our  case,  the  plaintiff  had  vio- 
lated the  policy  of  the  law,  in  selling  these  slaves  in  a  state  where  they  could  not 
be  introduced  for  sale,  and  therefore  cannot  recover.  The  keeping  the  slaves  for 
sale  in  the  state  is  an  adherehce  to  the  unlawful  intention  with  which  they  were 
introduced,  and  when  kept  till  sold,  the  very  act  of  sale  is  a  continuation  and  con- 
summation of  the  unlawful  purpose,  and  aggravation  of  the  guilt  of  the  offender;  yet 
it  is  asked  to  be  received  as  perfectly  lawful,  and  worthy  the  sanction  and  encou- 
ragement of  judicial  tribunals.  Nor  would  the  pretended  misapprehension  of  the  law 
avail  the  plaintiff,  for  in  the  case  of  Craig  v.  U.  S.  Insurance  Company,  '  Peters' 
C.  C.  R.  410,  Justice  Washington  of  this  court,  said,  in  deciding  against  a  contract 
of  insurance  on  the  ground  that  it  was  against  the  policy  of  the  law,  "  I  mean  not  to 
impute  crime,  or  even  intentional  impropriety,  to  either  of  these  parties.  I  have  no 
doubt  t.'iat  they  acted  with  the  most  perfect  innocence,  mistaking  the  law,  as  many 
legal  characters  did,  at  a  later  period  than  thut  when  this  contract  was  entered 
into." 

In  Billing  v.  Pitkin,  2  Caines,  146,  it  was  decided  that  "  an  action  will  not  lie 
upon  a  contract  to  pay  over  half  the  proceeds  of  an  illegal  contract,  though  the 
money  arising  from  it  has  been  received  by  the  defendant."  This  was  a  case  of  a 
sale  by  an  agent  of  land  in  Pennsylvania  under  a  Connecticut  title,  which  sale  we 
have  seen  was  void,  as  contrary  to  t'le  policy  of  the  law.  The  principal  received 
the  money  on  the  sale,  and  refused  to  pay  the  agent  the  portion  he  was  to  receive 
for  effecting  the  transaction,  but  a  recovery  was  refused  and  the  defendant  per- 
mitted to  retain  the  money.  The  court  said  :  "  It  is  too  salutary  and  well  settled 
a  principle  to  be  in  any  measure  infringed,  that  courts  of  justice  ought  not  assist  an 
illegal  transaction  in  any  respect.  To  sustain  the  present  action  would  be  in  some 
degree  ratifying,  countenancing,  and  sanctioning  an  illegal  contract."  "  If  the 
consideration  money  for  this  pretended  claim  had  been  paid  to  the  plaintiff,  neither 
a  court  of  law,  or  equity,  would  have  aided  the  defendant  in  recovering  it  from  him." 
By  this  doctrine,  even  an  agent  who  receives  money  for  a  principal  on  an  unlaw- 
ful sale,  can  retain  the  money,  the  contract  to  pay  the  money  to  the  principal  being 
void,  as  growing  out  of  the  unlawful  sale,  yet  such  a  contract  is  distinct  and  inde- 
pendent of  the  original  transaction,  and  in  every  respect  collateral.     In  Parsons  v. 


«  t 


*       ^.        * 


Groves  et  al.  v.  Slaughter. 


xxui 


Thompson,  the  sale  of  an  office  not  within  the  words  of  the  statute,  was  declared 
void,  Ihdiigh  in  the  language  .f  Lord  Loughborough,  "  it  was  the  practice"  to  sell 
such  otfices.  1  Hen.  Black.  322,  324.  In  Bryan  v.  Lewis,  1  Ryan  &■  Moody,  386, 
it  was  stated  as  a  general  rule,  that  where,  to  sanction  the  sale  of  goods,  "  would 
be  attended  with  the  most  misciiievous  consequences;"  such  sales  will  not  be  up- 
held by  the  courts,  though  no  statute  declares  the  sale  void.  See  7  Mas.  112. 
In  Fennell  v.  Ilidler,  6  Barn.  &.  Ores.  406,  it  was  decided,  that  a  horse  dealer 
could  not  recover  the  price  of  a  horse  sold  by  him  on  Sunday,  such  sole  being  con- 
trary to  the  policy  and  spirit  of  the  act,  declaring  that  no  persons  "  siiall  do  or 
exercise  any  worldly  labour,  business,  or  work  of  their  ordinary  calling,  on  the 
Lords  day."  And  see  4  Bing.  84.  2  C.  &  P.  644.  12  Moore,  266.  A  mercer 
who  sells  ribands  to  a  candidate  for  parliament,  if  he  knew  that  the  candidate  in- 
tended them  as  presents  for  voters,  which  is  forbidden  by  law,  the  mercer  could  not 
recover  the  price.  Richardson  v.  Webster,  3  Car.  &.  Payne,  128.  There  is  no 
statute  forbidding  such  sales  to  candidates,  out  as  to  sanction  the  sales  would  en- 
courage candidates  to  violate  the  law  which  prohibits  them  from  making  presents 
to  voters,  such  sales  are  held  void.  See  3  Taunt.  6.  1  Ashmead,  68.  9  Vermont, 
23,  310.  7  Greenleaf,  113. 

In  Fales  v.  Mayberry,  2   Gall.  560,  it  was  decided,   "  that  no  action  can  be 
maintained  against  master  and  part  owner  of  a  ship  engaged  in  the  slave  trade 
by  his  partners  in  the  concern ;   nor  against  an  ag-cnt  with  the  proceeds  in  his 
hands;"  nor  even  by  an  assignee  of  the  note  growing  out  of  such  transactions; 
and  "  if  a  siiip  be  sold  in  a.  foreign  port,  to  evade  a  forfeiture  incurred  in  the  United 
Slates,  no  action  can  be  maintained  for  the  proceeds."     Here  the  offence  had  been 
committed  long  before  the  sale,  by  the  voyage  for  slaves,  from  Boston  to  Georgia, 
thence  to  Africa,  and  thence  with  the  slaves  to  I  he  West  Indies — after  nil  ichich, 
the  ship  was  sold  at  St.  Bartholomews.     The  sale  was  subsequent  to  the  illegal 
voyage,  but  as  it  was  a  consummation  by  the   plaintiff,  as  in  this  case,  of  the 
oricrinal  unlawful  purpose,  the  sale  was  held  to  be  unlawful,  though  there  was  no 
law  declaring  it  so,  and  there  could  he  no  forfeiture  at  St.  Bartholomews  ;  and  besides 
the  case  did  not  proceed  on  a  failure  of  consideration,  for  the  vessel  was  delivered 
and  held  under  the  sale,  but  upon  the  illegality  of  the  voyage  preceding  the  sale.     In 
Morel  V.  Legrand,  1  Howard,  150,  it  was  decided,  by  the  high  court  of  Missis- 
sippi, that  a  sale  by  a  settler,  of  his  improvement,  made  on  the  public  lands,  in  ex- 
pectation of  a  pre-emption,  was  void,  as  contrary  to  the  policy  of  the  intrusion  act 
of  congress,  though  nothing  in  that  act  df-clared  such  sale  to  be  void.    The  opinion 
of  the  court  was  delivered  by  Chief  Justice  Sharkey,  the  same  judge  who  decided 
in  our  favour  in  this  case  ;  and  the  case  is  chiefly  cited  as  evidence  of  the  impar- 
tiality atid   independence  of  the  court,  for,  in  giving  judgment  against  the  sale  of 
this  inchoate   prospective    pre-emption,    the   court  was   pronouncing  an  opinion 
against  their  wi.shes  as  citizens,  and  against  a  system  of  sales  by  settlers,  univer- 
sally and  deservedly  popular  in  the  state  of  Mississippi      In  Blachford  v.  Preston, 
8  T.  R.  SO,  it  was  held,  that  "  a  sale  (by  the  owner)  of  the  command  of  a  ship  em- 
ployed in  the  East  India  Company's  service,  without  the  knowledge  of  the  com- 
pany, is  illegal ;  and  the  contract  of  sale  cannot  be  the  foundation  of  an  actif)n." 
Lord  Kenyon,  Chief  Justice,  said — "  a  plaintiff  who  comes  into  a  court  of  justice  to 
enforce  a  contract,  must  come  on  legal  grounds  ;  and  if  he  have  not  a  legal  title, 
he  cannot  succeed,  whatever  the  private  wishes  of  the  court  may  be.     In  this  case 
the  plaintill's  have  relied  on  the  practice  that  (as  it  is  said)  has  so  long  prevailed  of 
selling  the  commands  of  ships ;  but  that  practice  is  in  violation  of  the  laws  and 
regulations  of  the  East  India  Company."    Lawrence,  Justice,  after  stating  the  sale, 
said — "  subsequent  to  this,  the  East  India  Company  came  to  a  resolution,  for  the 
purpose  of  abolishing  the  practice  of  selling  the  commands  of  ships,  and  of  making 
compensation  to  some  of  the  officers  in  their  service,  who  had  paid  for  their  com- 
mands— hnt  this  resolution  was  not  made  in  approbation  of  the  practice  that  had 
prevailed  before  ;  but  feeling  that  they  were  hiamcable  for  not  having  put  a  stop  to  it 
sooner,  they  came  to  the  resolution  of  abolishing  the  practice  that  had  obtained  in 
defiance  of  the  by-laws  of  the  company."     This  case  shows  how  unavailing  any 
practice,  however  long  established  and  universal,  is,  to  give  validity  to  any  con- 
tract repugnant  to  the  policy  of  the  law. 


XXIV 


Groves  el  ul.  v.  Slaughter. 


i  i 


Wlienever  the  introduction  of  any  nrticle  into  a  country,  generally,  or  for  sale,  is 
proliibited,  or  its  use  or  inanuliicture  forbidden,  or  its  offer  for  sale — in  all  these 
cases  the  sale  is  illegal,  although  the  law  does  not,  in  terms,  prohibit  the  sale. 
We  have  seen  that  the  maxims  applicable  to  this  question  were  borrowed  from  the 
civil  law,  as  principles  of  universal  justice.  One  of  the  most  distinguished  writers 
on  this  subject  says — "  In  certo  loco  merces  qumdam  prohibitne  sunt.  Si  vendan- 
tur  ilii,  contractus  est  nullns  verum  si  niet.x  eadeni  alibi  sit  vendita  ubi  non  erat 
inturilkta,  emptor  condemnabitur,  ([uia  contractus  inde  ab  initio  validiis  fuit." 
Huberus  Tit.  de  Conflictu  Legum,  Vol.  II.  page  539:  which,  us  translated,  reads 
— "  In  a  certain  place  the  introduction  of  some  articles  is  prohibited.  If  lliese  are 
sold  t/icrr,,  the  contract  is  voiil.  But  if  the  same  articles  are  sold  elsewhere,  where 
their  introduction  is  not  interdicted,  there  the  purchaser  shall  be  condemned  to  pay 
the  price,  because  the  contract  was  valid  from  the  beginning :"  and  Lord  Mans- 
field, in  1  Cowper,  approves  this  doctrine,  and  applies  it  to  render  void  the  sali ,  in 
Engliind,  of  goods  on  which  the  duties  have  not  been  paid. 

The  same  doctrine  is  laid  down  in  Krskine's  Inst.  478,  as  follows: — "Things, 
the  importation  or  use  of  which  is  absolutely  prohibited,  cannot  be  the  subject  of 
commerce,  nor,  consequently,  of  sale.  But  where  the  importation  of  particular 
goods  is  only  burdencid  with  a  duty,  a  contract  may  be  effectually  entered  into 
concerning  them ;  for  though  the  law  enacts  penalties,  if  they  should  not  be  regu- 
larly entered,  it  allows  the  use  of  them  to  all  the  community,  and  so  leaves  them 
as  a  subject  of  commerce.  (Karnes,  40.)  Yet  even  in  the  sale  of  run  troods,  no 
action  for  damages  lies  against  the  seller  lor  non-delivery,  if  the  buyer  knew  th^t 
they  were  run  "  Home,  34.  Ersk.  478.  Here  the  law  is  distinctly  laid  down 
by  those  two  great  jurists,  Home  and  Erskine,  that  where  the  importation  on  use 
of  any  article  is  proliibited,  the  sale  is  void. 

In  1st  Kames'  Equity,  357,  referring  to  the  Scotch  decisions  on  sales  of  smug- 
gled goods,  he  says,  '•  they  are  not  sustained  at  present,  nor,  I  hope,  will  be  ;"  in 
which  he  has  been  fully  supported  by  the  subsequent  decisions  in  Scotland.  In 
speaking  of  this  subject,  this  able  writer  says — "  The  transgression  of  a  prohibitory 
staiute  is  a  direct  contempt  of  legal  authority,  and,  consequently,  a  woral  irrong, 
whicii  ouirht  to  be  redressed  ;  and  where  no  sanction  is  added,  it  must  necessarily 
be  the  purpose  of  the  leirislatnre  to  leave  the  remedy  to  a  court  of  law  :"  and  the 
author  adds,  that  in  such  cases  the  true  mode  "  of  redressing  the  wrong,  is  to  void 
the  acty  Here  we  find  this  great  jurist  avowing  the  true  principle,  that  there  is 
no  distinction  in  the  rule  for  enforcing  contracts,  between  malum  prohibitum  and 
malum  in  se.  And  if,  in  a  despotic  or  motinrchical  government,  it  be  a  '^  moral 
tcronii''  to  violate  a  prohibitory  law,  how  much  more  strongly  should  this  principle 
apply  to  laws  proceeding,  not  from  a  monarcli's  will,  but  from  the  free  consent  of 
the  governed,  from  the  people  of  a  slate  themselves.  To  violate  such  laws  is  not 
only  a  "  moral  wrong,"  but  an  assault  upon  the  sovereignty  of  the  people.  We 
find  here,  also,  a  full  answer  to  the  difficulty  suggested  as  to  the  want  of  any  sanc- 
tion to  this  clause.  The  true  sanction  in  all  such  cases,  we  here  see,  "  is  to  void 
the  a^.t." 

This  subject  is  discussed  with  great  ability  by  Mr.  Bell,  Professor  of  Law  in  the 
University  of  Edinburgh.  Having  treated  of  contraband  of  war,  he  then  ])roceeds 
to  consider  "contraband  of  tnidv.  or  snmgirling  contracts."  1  Bell's  Com.  306. 
He  says — "  The  contempt  and  breach  of  those  laws  is  called  smiigulliifr ;  the  goods 
as  to  which  the  evasion  is  attempted,  coiitnihand ;  and  the  great  rule  is,  that  no 
action  is  maintainable  on  the  contract^  or  for  the  price  of  the  goods  piirrhuscd  in 
contempt  of  those  laws.  In  the  one  case,  'Potior  est  conditio  possidentis;'  in 
the  other,  if  an  action  is  brought  for  nmney,  '  Potior  est  conditio  defendentis.'  " 
"  When  the  goods  have  come  into  this  country,  the  criterion  of  decismn  to  sustain 
or  dismiss  the  action,  is  knowledge  of  the  contraband  natuie  of  the  goods.  The 
decisions  have  varied;  but  it  would  seem  that  when  the  goods  are  prohibited,  no 
bona  fides  can  justify  the  contract:  that  when  the  goods  are  not  prohibited,  but 
may  lawfully  be  sold,  provided  the  duties  have  been  paid,  action  is  denied  where 
the  party  knows  the  duties  to  be  unpaid  :  that  after  the  goods  are  in  the  circula- 
tion of  this  country,  the  bona  fide  purchaser  has  action  for  the  delivery,  although 


Groves  et  ah  v.  Slaughter. 


XXV 


smuggled.  And  he  gives  it  as  the  settled  law,  that  there  can  be  no  action  "  on 
bills  for  the  price  of  contraband  goods,"  the  bills  "  being  in  the  hands  of  the  origi- 
nal parties,  or  of  their  trustees."  307.  in  3d  Brown's  Synopsis  Scotch  Cases, 
page  1437,  it  is  laid  down  au  the  settled  law,  that  although  there  can  be  no  reco- 
very of  the  price  on  a  sale  "  of  smuggled  goods,"  "  in  a  question  between  the  £m- 
porter  and  jmrclinscr,"  yet  other  bona  fide  vendors  can  recover  "  where  the  goods 
said  to  have  been  smuggled  have  passed  from  hand  to  hand  on  shore." 

Having  shown  that  th^  law  in  Scotland  and  upon  the  continent  of  Europe  is  in 
our  favour,  let  us  now  examine  the  English  cases.  Law  v.  Hodgson,  2  Camp. 
147,  which  has  been  repeatedly  recognised  in  England  and  America,  was  an  action 
by  a  brickmaker  for  the  price  of  certain  brick  made  and  sold  by  him,  and  used  and 
retained  by  defendant,  in  a  house  erected  by  him.  The  defence  was  founded  solely 
on  the  allegation  that  the  bricks  were  not  of  the  size  required  by  the  statute.  17 
G.  3,  c.  42,  sec.  1,  vol.  14.  The  first  section  of  this  act  declares,  that  "  all  bricks 
which  shall  be  made  for  sale  in  any  part  of  England,  shall,  ir/ic/i  burnt,  be  not  less 
than  2J  inches  thick  and  not  less  than  4  inches  wide."  The  2d  section  enacts, 
"  That  if  any  person  shall  make  bricks  for  sale  of  less  dimensions,  he  shall  forfeit 
the  sum  of  20  shillings  for  every  1000  bricks  so  made."  The  defendant  contended 
that  the  act  only  prohibited  "  the  making  of  smaller  bricks,  under  a  penalty,  but  did 
not  declare  contracts  void."  That  even  if  liable  to  the  penalty  for  the  offence  of 
making  bricks,  the  subsequent  sale  was  valid.  He  argued  the  impossibility  of 
compliance  with  the  statute,  "as  bricks  made  in  the  same  mould,  shrunk  very  dif- 
ferently in  the  burning,"  and  that  the  "honest  intention  of  the  brickmaker  was  not 
to  be  doubted  in  the  present  case;"  and  that  the  defendant  having  "  himself  select- 
ed" and  used  the  bricks,  could  not  make  the  objection.  Lord  Ellenborough  said : 
"  The  first  section  of  this  statute  absolutely  forbids  such  bricks  to  be  made  for 
sale.  Therefore,  the  plaintiff*  in  making  the  bricks  in  question,  was  guilty  of  an 
absolute  breach  of  the  law }  and  he  shall  not  be  permitted  to  maintain  an  action/or 
their  value." 

On  re-argument,  the  court  adhered  to  its  decision,  declaring  "  that  the  best  way 
to  enforce  an  observance  of  the  statute,  was  to  prevent  the  violation  of  it  from 
being  profitable."  There,  the  offence  was  the  making  the  bricks  for  sale,  not  the 
sale  ;  and  the  offence  was  complete  when  the  bricks  were  thus  made,  and  the  sub- 
sequent sale,  just  as  distinct  a  transaction  as  in  this  case.  There  too,  the  bricks  had 
been  selected  and  used  by  the  defendant,  and  constituted  part  of  a  house,  which 
was  his  property,  and  could  be  sold  by  him.  It  was  also  a  very  hard  case,  which 
this  is  not;  but,  as  the  making  the  bricks  for  sale  was  illegal,  therefore,  the  subse- 
quent sale  was  avoided,  as  here  the  introduction  for  sale  was  illegal,  therefure  the 
subsequent  sale  was  void,  both  sales  having  been  made  by  the  offender  himself. 
The  additional  reason  for  the  decision,  was  that,  "  the  best  way  to  enforce  an 
observance  of  the  statute,  was  to  prevent  the  violation  of  it  from  being  pro- 
fitable." 

Brown  v.  Duncan,  10  B.  «fe  Cres.  93,  Lord  Tenterden  says:  "These  cases 
(breaches  of  revenue  regulations)  are  very  different  from  those  where  the  provi- 
sions of  acts  of  parliament  have  had  for  their  object  the  protection  of  the  public. 
Such  are  the  acts  against  stock  jobbing,  and  the  nets  against  usury,  it  is  different 
also,  from  the  case  where  a  sale  of  bricks  required  by  act  of  parliament  to  be  of  a 
certain  size,  was  held  to  be  void,  because  they  were  under  the  size.  There  the  act 
of  parliament  operated  as  a.  protection  to  the  public,  &s  well  as  the  revenue,  securing 
to  them  bricks  of  the  particular  dimensions.  Here  the  clauses  of  the  act  of  parlia- 
ment had  not  for  their  object  to  protect  the  public,  hut  the  revenue  only.  Neither  is 
this  one  of  that  class  of  cases  where  an  attempt  is  made  to  recover  the  price  of  pro- 
hibited goods."  Here  the  case  of  Law  and  Hodgson  is  recognised  and  distinguished 
from  the  class  of  breaches  of  revenue  regulations,  and  is  classed  with  those  cases, 
"  where  an  attempt  is  made  to  recover  the  price  of  prohibited  goods."  Even  then, 
if  the  sale  of  goods  imported  and  on  which  the  duty  is  not  paid,  were  lawful,  be- 
cause the  object  in  that  case  only  was  to  guard  the  revenue,  we  see  it  is  entirely 
different  from  the  case  of  the  sale  "  of  prohibited  goods,"  where  revenue  is  not  the 


XXVI 


Groves  et  al.  v.  Slaughter* 


object,  but  the  intention  is  "  to  protect  the  public,"  by  forbidding  the  introduction 
of  such  goods,  and  especially  if  the  introduction  for  sale  is  prohibited. 

In  Little  v.  Poole,  9  Barn.  t&  Ores.  192,  where  the  law  directed  in  the  sale  of 
coals,  that  "  the  vendor  of  coals,  by  wharf  measure,  deliver  a  ticket  to  the  carman 
employed  to  cart  the  coal,  and  the  carter  is  to  deliver  it  to  the  purchaser,"  under  a 
penally  for  non-delivery,  the  sale  of  the  coal  was  held  void  ;  because,  such  ticket 
did  not  accompany  the  delivery  of  the  coals,  although  the  sale  was  fair,  the  coals  of 
the  proper  quality  and  measure,  and  although  there  was  nothing  in  the  act 
declaring  the  sale  void,  and  the  defendant  had  received  and  still  retained  the  coals. 
Here  the  coal  was  property,  and  retained  as  such,  and  yet  the  sale  was  avoided  ; 
and  the  case  of  Law  and  Hodgson  again  expressly  recognised,  and  in  both  cases 
the  sale  was  avoided  by  implication  only  ;  there  was  no  forfeiture  of  the  property, 
and  nothing  in  the  statute  declaring  the  sale  void. 

In  Forster  v.  Taylor,  6  Barn.  &  Adol.  887,  the  question  arose  under  the  act 
which  declared  that,  "  every  dairyman  and  farmer,  who  shall  pack  any  butler  for 
sale,  shall  pack  the  same  in  vessels  (marked  aa  prescribed  by  law,)  and  shall  brand 
his  name  on  the  vessel  and  butter,  upon  penalty  for  every  default  of  five  pounds." 
The  court  admitted  the  sale  was  fair  and  the  weight  proper,  and  the  butter  sold  by 
the  farmer  received  and  retained,  yet  the  sale  was  declared  void  ;  because,  the 
vessel  was  not  marked  according  to  the  direction  of  the  statute;  and  although  there 
was  not  one  word  in  that  statute  prohibiting  the  sale,  it  was  decided,  that  the  act 
"  indirectly  prohibited"  any  sale  of  butter  in  vessels  rot  properly  marked  ;  and  the 
court,  after  approving  Law  and  Hodgson,  and  reviewing  the  cases,  and  referring  to 
those  "arising  out  of  transactions  connected  with  smuggling,"  declared  the 
"  general  principle"  to  be  "  that  where  the  provisions  of  an  act  of  parliament  have 
been  infringed,  no  contract  can  be  supported  arising  out  of  it."  The  court  aftirni 
the  doctrine  previously  laid  down,  3  Barn.  &  Adol.  221,  that  where  the  contract 
"  is  expressly  or  by  implication  forbidden  by  the  statute  or  common  law,  no  court 
will  lend  its  assistance  to  give  it  effect." 

In  Tyson  v.  Thomas,  1  M'Lellan  &  Young,  119,  sale  of  corn  by  the  hobbet, 
an  unlawful  measure,  was  declared  void,  although  the  court  admitted,  "  that  the 
statute  had  not  been  acted  on  for  nearly  a  century,"  and  that  there  was  "  great  in- 
convenience from  enforcing  it;"  but  the  court  said,  "  no  act  of  parliament  is  lost  by 
desuetude;"  and  the  court  annulled  the  contract  of  sale,  although  they  declared, 
"There  is  no  doubt  these  parties  dealt  bona  fide  with  each  other  in  making  the 
contract."  And  this  case,  sustained  by  many  others,  is  also  a  complete  answer  to 
the  argument  urged  on  this  as  well  as  the  first  branch  of  the  case,  that  this  pro- 
hibition as  to  slaves,  was  "  inoperative,"  or  had  not  been  enforced,  or  was  a 
"mooted  question"  in  Mississippi,  and  that  the  plaintiff  acted  in  good  faith.  No 
one  of  these  statements  as  to  the  plaintiff  in  this  case  is  correct,  but  were  it  other- 
wise, we  perceive  how  unavailing  it  would  be  to  uphold  this  contract. 

In  Billiard  v.  Hayden,  2  Car.  &  Payne,  472,  it  was  decided,  that  "  If  the  im- 
portation of  certain  goods  be  prohibited,  and  the  plaintiff  sell  such  goods  in  this 
country  to  A.,  who  endorses  a  bill  of  exchange  to  him  in  payment,  the  plaintiff 
cannot  recover  on  that  bill  against  the  acceptor,  although  there  was  no  evidence 
that  the  plaintiff  was  the  importer  of  the  prohibited  goods."  That  is  a  much 
stronger  case  than  this.  It  would  be  the  same  as  if  Slaughter,  the  importer,  had 
left  these  slaves  with  some  commission  or  auction  house  in  Mississippi,  and  they 
had  sold  the  slaves  in  their  name,  and  taken  the  acceptance  of  some  other  house 
for  the  price,  and  endorsed  it  to  Slaughter,  and  the  suit  had  been  against  the  ac- 
ceptors, as  in  the  above  case  "  by  the  plaintiff,  aa  endorsee."  That  case  was  the  sale 
in  England,  of  silks  imported  from  France,  against  the  prohibition  of  such  importa- 
tion by  the  statute  50  Geo.  3,  c.  55.  The  plaintiff  contended,  "the  statute  only 
prohibits  the  importation  of  foreign  silk,  and  it  does  not  at  all  appear,  that  the  silks 
were  imported  by  the  plaintiffs.  The  statute  does  not  make  the  sale  of  them  void ; 
and  as  there  is  no  evidence  that  the  plaintiff  imported  them,  they  are  entitled  to 
recover  on  the  bill."  Abbott,  Chief  Justice:  "  This  transaction  arose  before  the  late 
act,  the  statute  of  the  50  Geo.  3,  c.  55,  prohibits  the  importation  of  all  foreign 
silks,  and  I  have  no  hesitation  in  saying,  that  if  these  were  foreign  silks,  and  the 


>   m  > 


Groves  et  at.  v.  Slaughter. 


XXV 11 


jction 

hie  of 
irtnan 
ider  a 
(ticket 
}al8  of 
le  act 
Icoals, 
lided ; 
I  cases 
aerty, 


bill  was  given  in  payment  of  them,  the  plaintiff  cannot  recover."  The  reporters, 
in  their  note,  refer  to  this  "  late  act,"  by  which  the  former  act,  prohibiting  the  im- 
poitatiun  of  foreign  silks,  was  repealed,  and  say  :  "  Although  this  case  is  thus  ren- 
dered less  important,  as  to  foreign  silks,  it  appears  equally  to  apply  to  any  other 
species  of  goods,  the  importation  ok  which  is  pkohibited."  The  court  as  well 
as  the  reporters,  place  this  case  upon  the  sole  ground,  that  if  a  statute  "  prohibits 
the  iinportalinn"  of  any  article  into  England,  its  sale  there  when  imported  is  void. 
Here  also  it  was  urged,  that  the  importation  only  was  prohibited,  and  not  the  sale ; 
but  the  sale  was  regarded  as  impliedly  forbidden  by  the  prohibition  of  the  importa- 
tion. 

In  Langton  v.  Hughes,  1  Maule  &  Selwin,  393  ;  "  Where  the  plaintiff,  a  drug- 
gist, alter  the  42  Geo.  3,  c.  38,  but  before  the  51  Geo.  3,  c.  87,  sold  and  delivered 
ginger  and  other  articles,  knowing  that  they  were  to  be  used  in  brewing  beer ; 
held,  that  he  could  not  recover  the  price."  By  the  act  of  42  Geo.  3,  under  which 
the  question  aroiie,  the  brewer  is  prohibited  from  "  using  any  thing  but  malt  and 
hops,  in  the  brewing  of  beer;"  and  the  act  of  51  Geo.  3,  c.  87,  prohibits  the  sale 
of  such  drugs  to  brewers.  It  was  contended,  that  although  the  sale  under  the  last 
act  would  be  void,  it  was  not  so  under  the  first,  as  it  did  not  prohibit  the  sale  of  the 
ginger  to  the  brewer,  but  only  its  use  by  him  in  making  beer.  They  contended 
that  ginger  was  an  innocent  article,  and  might  be  lawfully  bought  and  sold,  and 
that  the  improper  use  subsequently  made  of  it  by  the  defendant,  did  not  avoid  the 
previous  sale.  Rut  the  court  held,  that  as  the  law  was  for  the  protection  of  the 
public  health,  and  as  to  uphold  such  a  sale  would  be  "  against  the  policy  of  the 
law,"  that  the  sale,  though  not  prohibited  expressly,  was  unlawful,  as  tending  to  en- 
courage a  violation  of  the  law. 

In  3d  Vesey,  ex  parte  Mather,  it  was  decided,  that  in  the  case  of  a  bill  endorsed  to 
a  broker,  in  consideration  of  money  advanced  by  him,  in  effecting  an  illegal  insu- 
rance, no  recovery  by  the  broker  can  be  had  against  any  of  the  parties  to  the  bill. 

The  cases  of  Faickney  v.  Reynous,  and  Petrie  v.  Hannay,  so  much  relied  on  by 
the  other  side,  but  now  so  entirely  exploded,  were  cited  in  this  case ;  but  the  Lord 
Chancellor  said :  "  I  am  perfectly  aware  of  both  the  cases  cited,  but  I  cannot  per- 
fectly accede  to  them.  What  is  called  a  consent  in  these  cases,  is  a  confederacy 
to  break  a  positive  law.  I  have  often  had  occasion  to  think  of  these  cases  upon 
lottery  insurances,  &c.,  and  it  never  occurred  to  me  to  be  possible  to  state  a  dis- 
tinction between  them,  and  a  case  repeatedly  adjudged;  if  a  man  is  employed  to 
buy  smuggled  goods,  if  he  paid  for  the  goods,  and  the  goods  come  to  the  hands  of 
the  person  who  employed  him,  that  person  shall  not  pay  for  the  goods."  Here,  in 
this  case,  the  broker  was  not  the  insurer,  he  made  no  illegal  contract,  but  he  ad- 
vanced the  money  to  the  man  who  did  make  the  illegal  insurance;  and  yet  he  could 
not  recover  that  money  so  advanced.  That  case  was  two  removes  from  the  direct 
illegality,  and  yet,  as  it  grew  out  of  it,  there  could  be  no  recovery.  First  "  the  voy- 
age from  Ostend  to  the  East  Indies,"  was  declared  to  be  illegal;  and  therefore  as  a 
consequence,  the  insurance  of  that  unlawful  voyage  was  illegal,  not  as  declared  so 
by  statute,  but  as  contrary  to  the  policy  of  the  law  forbidding  such  voyages.  Then 
came  the  contract  to  pay  the  broker  the  money  advanced  by  him,  to  effect  the  in- 
surance, the  broker  having  no  interest  in  the  voyage  or  insurance,  but  being  merely 
a  lender  of  money  ;  but  this  loan  and  second  contract,  being  connected  with  the 
insurance,  was  void,  and  there  could  be  no  recovery.  Is  there  not  a  more  direct 
connection  between  the  act  of  sale  in  this  case  by  the  original  offender,  and  the 
unlawful  introduction  of  the  slaves  for  sale,  than  in  the  advancing  of  the  money 
in  this  case  by  the  broker  ?  and  yet  it  could  not  be  recovered  as  against  the  policy 
of  the  law. 

Here,  too.  the  Chancellor  put  a  case,  which  he  declares  has  been  "  repeatedly  ad- 
judged" as  to  smuggled  goods,  which  is  directly  in  point.  A.  employs  B.  to  buy 
smuggled  goods;  B.  with  his  own  money,  purchases  the  goods  for  A.,  and  A.  re- 
tains them  ;  yet  B.  cannot  compel  A.  to  pay  for  the  goods  thus  purchased  at  his 
instance,  and  for  his  benefit,  and  received,  and  retained  by  him.  Why  is  this  ?  The 
purchase  of  the  smuggled  goods  is  illegal,  and  therefore  the  person  advancing  the 
purchase  money  for  another,  cannot  recover  the  money  so  advanced,  because  in 


XXVIll 


Groves  et  al.  v.  Slaughter. 


that  case,  as  in  this,  to  sustain  sucii  contracts,  would  be  to  encourage  the  smug- 
gling of  goods  into  the  country,  and  would  therefore  be  against  the  policy  of  the 
law. 

The  ground  on  which  insurance  on  cargoes  illegally  exported  is  void,  is  stated 
in  11  East.  502.  That  was  an  insurance  on  naval  stores,  and  the  objection  was, 
that  under  the  act  of  33  Geo.  3,  c.  2,  naval  stores  were  forbidden  to  be  exported, 
but  the  act  did  "not  avoid  the  contract  of  insurance."  The  court  said,  "the  sta- 
tute having  made  the  exportation  of  and  trade  in  naval  stores  contrary  to  the  king's 
proclamation  illegal,  implicdiij  avoids  all  contracts  made  for  protecting  the  stores 
80  exported." 

In  Bensily  v.  Bignold,  5  Barn  &  Aid.  335,  where  the  act  directed  every  printer  of 
every  book  or  paper  to  affix  his  name  to  it,  under  a  penalty  of  £20  for  every  de- 
fault, it  was  decided  that  the  printer  who  had  not  complied  with  the  law,  could  not 
recover  for  the  labour  furnished  or  for  the  paper  used  in  printing  the  book.  It  was 
urged,  as  was  the  fact,  that  the  law  contained  "no  prohibitory  clause  whatever,  but 
merely  a  particular  regulating  clause  protected  by  a  penalty  ;"  and  upon  the 
ground  of  a  distinction,  also,  "between  a  prohibition  and  a  penal  enactment,"  as 
well  as  upon  the  ground  that  the  act  was  not  malum  in  se,  and  "  that  there  wao  no 
clause  whatever  making  the  contract  illegal ;"  it  was  conten<'.ed,  that  they  were  en- 
titled to  recover.  It  was  especially  urged,  that  they  could  recover  tor  '  the  paper 
provided  by  them  for  printing."  But  the  claim  was  overruled  both  as  to  the  labour 
and  materials.  The  court  said,  as  to  statutes,  "  if  there  be  an  omision  to  do  the 
thing  required,  it  is  not  any  excuse  that  the  party  did  not  intend  to  commit  a 
fraud."  "  The  public  have  an  interest  that  the  thing  shall  not  be  done,  and  the  ob- 
jection in  this  case  must  prevail,  not  for  the  sake  of  the  defendant,  but  for  that  of 
the  public."  Now  the  prohibitory  clause  in  the  constitution  of  Mississippi,  is  in- 
serted "  for  public  purposes ;"  the  frainers  of  that  instrument  considered  "  that  the 
public  have  an  interest  that  the  thing  shall  not  be  done  ;"  that  is,  that  slaves  should 
not  be  introduced  as  merchandise  or  for  sale ;  and  if  so  introduced  and  sold  by  the 
importer,  must  not  the  objection  to  the  sale  prevail,  not  for  the  sake  of  the  defend- 
ant, but  for  that  "  of  the  public  .-'''  And  it  is  the  strongest  possible  case  when  the 
contract  is  against  the  prohibitory  policy  of  the  constitution  of  a  state.  The  court 
also  declared  that  "the  distinction  between  mala  prohibita  and  malum  in  se,  has  been 
long  since  exploded.  It  was  not  founded  upon  any  sound  principle,  for  it  is  equal- 
ly unfit,  that  a  man  should  be  allowed  to  take  advantage  of  what  the  law  says  he 
ought  not  to  do,  whether  the  thing  be  prohibited  because  it  is  against  good  morals, 
or  whether  it  be  prohibited  because  it  is  against  the  interest  of  the  state." 

If,  then,  the  introduction  of  slaves  into  Mississippi  from  another  state,  as  mer- 
chandise and  for  sale,  would  be  malum  in  se,  none  will  maintain  that  the  sale  of  the 
slaves  by  the  guilty  transgressor  would  be  valid,  and  yet  it  is  just  as  valid  where 
the  importation  is  malum  prohibitum,  as  where  it  is  malum  in  se.  It  has  been  de- 
cided in  England,  that  no  action  can  be  maintained  for  the  copy-right,  or  for  the 
loss  or  destruction  of  the  book  by  another,  or  for  the  sale  or  for  the  profits  of  the 
sale,  in  whole  or  in  part,  or  for  the  printing  or  labour  furnished  in  printing  any 
book  of  an  indecent  or  immoral  or  libellous  character, or  "injurious  to  the  govern- 
ment of  the  state,"  or  "  •tlanderous,"  or  for  caricature  prints  or  pictures  of  a  simi- 
lar character,  2  Car  &  Payne,  136  to  171  and  notes;  also,  198  to  201  ;  2  Mer.  437; 
7  Ves.  1  ;  4  Esp.  97;  2  Camp.  29;  7  D.  &  R.  625;  6  B.  &  C.  173.  There  was 
no  prohibitory  statute  in  these  cases,  but  all  such  contracts  were  held  void  as 
against  the  policy  of  the  law. 

In  Wheeler  v.  Russell,  17  Mass.  258,  it  was  decided,  that  "no  action  lies  on 
a  promissory  note,  the  consideration  whereof  was  the  sale  of  shingles,  not  of  the 
size  prescribed  by  the  statute."  "The  statute  provided,  that  no  shingles  under 
certain  dimensions  shall  be  offered  for  sale,  in  any  town  in  this  common- 
wealth." The  act  was  passed  in  1783,  and  had  remained  "inoperative"  until  1821, 
the  date  of  this  decision.  It  was  contended  for  the  plaintiff,  that  there  might  be 
"an  offer  to  sell,"  by  which  alone  the  penalty  was  incurred,  and  "yet  no  sale  be 
made;"  "  the  offer  to  sell  must  precede  the  sale,  and  is  a  distinct  and  separate  act. 
The  sale  might  follow  or  might  not.     Why  then,  should  the  previous  commission 


) 


,W=^- 


Groves  et  al.  v.  Slaughter. 


XXIX 


le  smug- 
ly of  the 

fs  stated 
lion  was, 
pported, 
J  the  sta- 
le king's 
stores 


of  the  offence,  by  which  the  penalty  is  incurred,  vitiate  the  subsequent  sale  ?" 
The  arguments  in  that  case  are  the  same  now  urged,  tiiat  the  introduction  for  sale 
must"  precede  the  sale;"  that  is,  the  thing  forbidden  and  that  the  "  previous  com- 
mission of  this  otfence"  does  not  "vitiate  the  subsequent  sale,"  which  is  "a  distinct 
and  separate  act."  An  actual  sale  is  no  more  within  the  words  ''offer  to  sell"  than 
it  is  within  the  words  "introduce  as  merchandise  and  for  sale;"  and  in  both  cases 
the  oA'ence,  in  a  technical  sense,  may  be  completed,  and  no  sale  take  place;  but, 
although  such  technicalities  and  adherence  to  tlie  letter  against  the  spirit  of  the  act, 
may  be  the  rule  on  indictments  for  the  penalty  or  offence,  yet  we  have  seen  it  is 
far  otherwise,  when  the  court  acts  upon  the  contract,  which  is  always  void,  though 
not  within  the  letter,  if  against  the  policy  of  the  act. 

And  here  let  me  examine  the  case  on  which  the  counsel  rely  on  the  other  side 
of  Toler  v.  Armstrong,  11  Wheat.  238.  The  facts  were,  that  Toler,  the  plaintiff 
in  the  court  below,  paid  a  sum  of  money,  for  which  (he  suit  was  brought,  for  Arm- 
strong, namely,  the  appraised  value  of  certain  goods  of  Armstrong,  in  which,  or 
the  importation  of  which,  Toler  had  no  interest  or  concern,  and  which  goods  were 
condemned  to  the  United  States  as  illegally  imported  in  time  of  war,  by  a  pre- 
tended and  collusive  capture,  and  Toler  paid  the  appraised  value  of  the  goods  thus 
condemned,  and  other  charges,  and  the  expenses  of  the  prosecution,  for  Armstrong. 
When  the  goods  were  libelled  by  the  United  States,  they  were  delivered  up  by 
them  to  the  claimant,  De  Koven,  on  a  bond  for  the  appraised  value,  Toler  be- 
coming responsible  for  the  appraised  value  in  case  of  condemnation ;  and  they 
were  delivered  afterwards  to  Armstrong,  on  his  agreeing  to  pay  Toler  such  sums 
as  he  would  be  compelled  to  pay  for  Armstrong.  By  a  reference  to  the  Appendix 
to  'I  Wheat.  51,  it  will  be  seen,  that  this  sale  for  the  appraised  value  on  such  bond 
as  was  given  in  this  case  is  made  by  the  marshal,  and  is  the  legal  and  proper  me- 
thod. 

Now,  if  a  man  is  the  owner  of  certain  good:*  illegally  imported,  is  that  any  rea- 
son why  a  just  and  legal  contract,  to  be  refunded  the  money  which  he  might  have 
legally  advanced  on  account  of  other  goods  of  another  person  under  a  lawful  con- 
tract, should  not  be  fulfilled?  Surely  not;  for  the  offence  of  Toler,  as  to  his  goods, 
was  a  distinct  offence,  and  unconnected  with  the  other  offence  committed  by  Arm- 
strong in  importing  his  goods,  and  with  which  latter  offence,  as  the  jury  found, 
Toler  had  no  connection  whatever,  direct  or  indirect.  The  case,  then,  was  re- 
duced simply  to  this;  that  A.  illegally  impotls  goods,  and  they  are  libelled  by  the 
United  States,  to  whom  B.,  at  the  request  of  A.,  pays  the  appraised  value,  and 
other  charges  and  costs  incident  to  the  prosecution,  having  agreed  to  do  so  at  the 
request  of  B.  before  the  condemnation,  and  become  liable  to  do  so  in  the  event  of 
the  condemnation.  This  was  the  contract  to  recover  these  advances,  on  which  the 
court  decided,  and  nothing  more.  The  contract  made  by  Toler  "  with  the  govern- 
ment," under  wliicii  he  paid  the  money,  was,  in  liie  language  of  the  court,  "a 
auhstantive  independent  contract,  entirely  distinct  from  the  unlawful  importation;" 
"  it  is  the  payment  of  a  debt  due  in  good  faith  to  the  government ;"  and  "  if  it  may 
not  constitute  the  consideration  of  a  promise  to  repay  it,  the  reason  must  be,  that 
two  persons,  who  are  stparately  engaged  in  an  unlawful  trade,  can  make  no  con- 
tract with  each  other."  "  This  would  be  to  connect  distinct  and  independent 
transactions  which  have  no  connection  witii  each  other."  The  court  say — "  It  is 
laid  down  with  great  clearness,  that  if  the  importation  was  the  result  of  a  scheme 
between  the  plaintiff  and  defendant,  or  if  the  plaintiff"  Aad  any  interest  in  the  goods, 
or  if  they  were  consigned  to  him  with  his  prieity,  that  he  might  protect  and  defend 
them  for  the  owner,  a  bond  or  promise  given  to  repay  any  advance  made  in  pur- 
suance of  such  understanding  or  agreement  would  be  utterly  void."  The  court 
add — "  The  point  of  law  decided  is,  that  a  subsequent  independent  contract, 
founded  on  a  new  couaideration,  is  not  contaminated  by  the  illegal  importation, 
although  such  illegal  importation  was  known  to  Toler  when  the  contract  was  made  ; 
provided  he  was  not  interested  in  the  goods,  and  had  no  previous  concern  in  their  im- 
portation." "  Prorjrferf  HE  WAS  NOT  INTERKSTED  IN  THE  GOODS."  A  subsequent 
independent  contract,  founded  on  a  new  consideration,  is  not  contaminated  by  the 
illegal  importation."  Had  the  plaintiff  in  this  case  no  interest  in  these  slaves.'  Why 
c2 


XXX 


Groves  et  al.  v.  Slaughter. 


3    ; 


he  was  the  owner  of  them.  Had  he  "  no  previous  concern  in  their  importation .'" 
Why  he  was  the  guilty  importer  himself,  and  for  a  guilty  purpose,  which  is  to  be 
consummated  only  by  allowing  the  sale.  And  here  let  it  be  observed,  that  the 
whole  charge  of  the  court  below  was  not  reviewed  by  this  court,  but  only  that  part 
quoted  by  the  court  in  11  Wheat,  pages  268  and  269.  The  obiter  dictum  in  ar- 
guendo by  the  court  below,  as  to  the  validity  of  certoin  sales  by  an  importer,  had 
no  necessary  connection  with  the  facts  of  the  case,  and  could  have  no  influence  on 
the  decision,  and  was  not  reviewed  by  this  court,  it  not  being  necessary,  as  the 
court  said,  that  all  the  arguments  of  the  court  below,  in  arriving  at  their  conclu- 
sions, should  be  correct,  but  that  "  to  entitle  the  plaintiff  in  error  to  a  judgment  of 
reversal,  he  must  show  that  some  one  of  these  principles  (of  the  charge)  is  erro- 
neous to  nis  prejudice;"  and  the  court  declared  that  it  was  "unnecessary  to  re- 
view" the  charge  further  than  was  done  in  the  case. 

Now  as  to  the  obiter  dictum  in  this  case  in  4  Wash.  297,  found  in  the  charge  to 
the  jury  in  the  hurry  of  a  trial  at  nisi  priua  and  not  affirmed  by  this  tribunal,  that 
dictum  is:  "So  fur  as  the  rule  operates  to  discourage  the  perpetration  of  on  im- 
moral or  illegal  act,  it  is  founded  in  the  strongest  reason  ;  but  it  cannot  safely  be 
pushed  farther.  If,  for  example,  the  man  who  imports  goods  for  another,  by  means 
of  a  violation  of  the  laws  of  his  country,  is  diBqua'.ihed  from  founding  any  action 
upon  such  illegal  transaction  for  the  value  or  freight  of  the  goods,  or  for  other  ad- 
vances made  on  them,  he  is  justly  punished  for  the  immorality  of  the  act,  and  a  pow- 
erful discouragement  from  the  perpetration  of  it  is  provided  by  the  rule.  But  after 
the  act  is  accomplished  no  new  contract  ought  to  be  affected  by  it.  It  ought  not 
to  vitiate  the  contract  of  the  retail  merchant,  who  buys  these  goods  from  the  im- 
porter; that  of  the  tailor,  who  purchases  from  the  merchant;  or  for  the  customers 
of  the  former,  amongst  whom  the  goods  are  distributed  in  clothing,  although  the 
illegality  of  the  original  act  was  known  to  each  of  those  persons  at  the  time  he  con- 
tracted." Now  if  the  court  designed  to  say  that  upon  the  facts  of  that  case  the  im- 
porter, except  under  his  subsequent  repurchase  from  the  United  States  at  the 
appraised  value,  could  recover  on  his  contract  of  sale  of  goods  imported  us  were 
these  goods  during  war  and  against  the  war  policy  by  a  collusive  capture,  it  ia 
against  the  well  established  law  of  the  land.  These  goods  were  "condemned  to 
the  United  States  upon  the  ground  of  a  collusive  capture  by  the  Fly."  They  were 
then  confiscable  and  confiscated  goods,  because  "  shipped  nt  St.  Johns,"  a  town  in 
a  British  colony,  "  in  December,  1813,"  during  the  war  with  England,  and  shipped 
for  this  country  for  "  the  defendant,"  and  attempted  to  be  illegally  introduced  by 
a  collusive  capture.  From  the  moment  then  of  their  importation,  being  property 
from  an  enemy's  pert,  they  were  forfeited  by  the  laws  of  war  to  the  United  States, 
and  no  sale  of  these  goods  by  the  importer,  without  a  repurchase  from  the  United 
States,  wou'd  be  valid.  One  case  only  I  will  cite  on  this  subject,  a  decision  of 
Justice  Story,  subsequently  affirmed  by  this  court.  In  the  case  of  the  Rapid,  1 
Gallison,  295,  in  the  case  of  the  property  of  a  "  native  citizen  of  the  United  States" 
owned  by  him  previous  to  the  war,  and  then  in  New  Brunswick,  and  for  which  he 
sent,  immediately  after  the  war  commenced,  an  Jlmerican  vessel  to  bring  home  for 
him  to  Boston,  it  was  declared  that  even  this  was  a  trading  with  the  enemy,  and 
that  the  property  on  its  way  on  the  7th  July,  1812,  to  Boston,  in  an  American 
vessel,  was  confiscated  as  being  imported  against  the  laws  of  war.  The  court  said : 
"  The  contamination  of  forfeiture  is  consuniviate  the  moment  that  the  properly  be- 
comes the  medium,  or  the  object  of  illegal  intercourse."  In  confirming  this  decision 
in  8th  Cranch,  163,  this  court  said  :  "  We  are  aware  that  there  may  e.xist  consider- 
able hardship  in  this  case ;  the  owners  both  of  vessel  and  cargo  may  have  been 
unconscious  that  they  were  violating  the  duties  which  a  state  of  war  imposed  on 
them."  Nevertheless  the  property  was  forfeited.  To  speak  then  in  the  case  of 
Toler  and  Armstrong  of  a  valid  sale  by  the  importer  of  the  goods  in  regard  to 
which  "tiie  contamination  of  forfeiture  was  consummate,"  preceding  any  sale  in 
Boston,  never  could  have  been  the  intention  of  Judge  Washington,  for  he  was  one 
of  the  judges  who  concurred  in  the  opinion  of  this  court  in  the  above  cited  case  of 
the  Rapid.  But  if  we  look  at  the  facts  of  this  case,  and  apply  them  to  the  sale  by 
the  importer  of  the  goods  in  this  case,  we  will  see  why  such  sale  of  these  goods 


Groves  et  al.  v.  Slaughter. 


XXXI 


ortation  ?'• 
h  is  to  be 
>  that  the 
\y  that  part 
lum  in  ar- 
""ter,  had 
fluence  on 
'•■y.  ag  the 
'ir  coficlu. 
•iginent  of 
e)  is  erro- 
»ary  to  re- 
charge to 
""ittl,  that 
of  on  im- 
safely  be 
^y  ineane 

ny  action 
other  ad- 
d  a  pow 

iJulaAer 

uglit  not 
the  im- 

ustomers 

iugh  the 
he  con- 
the  im- 

8  at  the 

"8  were 

'e,  it  ia 

mned  to 

^y  were 

own  in 

shipped 

ced  by 

roperty 

States, 

United 

ion   of 

ipid,  1 

tales" 

ich  he 

rie  for 

^  and 

lican 

said: 

ly  be- 

ision 

ider- 

been 

d  on 

ie  of 

i  to 

e  in 

one 

B  of 

iby 

odf 


might  be  valid.  They  were,  as  is  si  id,  "  delivered  to  De  Koven,  the  owner  and 
coMiinander  of  the  Fly,  who  brouglit  ir  he  George  (and  these  goods  as  part  of  her 
cargo)  upon  admiralty  slipuiationa  given  by  De  Koven,"  and  it  was  after  this  that 
De  Koven,  the  importer,  sold  and  delivered  the  goods  tor  j|5000  to  Armstrong. 

Tliube  ndiiiirulty  stipulations  are  known  to  every  admiralty  lawyer,  and  described 
in  the  note  quoted  from  2d  Whealun,  by  which  the  claimant  (DeKoven)  receives 
the  goods  from  the  United  States,  to  whom  they  are  claimed  to  be  fott'eited,  and 
with  a  right  to  sell  them  upon  giving  bonda  willi  adequate  security  to  the  govern- 
ment, for  the  appraised  value,  in  cane  of  a  decision  against  the  claimant.  But  in 
any  other  case  than  this  waiver  and  repurchitse  from  the  government,  1  call  for  the 
production  of  a  single  case  in  which  a  eale  by  the  importer  of  prohibited  goods  has 
been  held  valid.  And  here  I  will  slate  llidl  our  chancellor,  Mr.  Buckner,  though  a 
very  able  and  upright  judge,  never  has,  1  believe,  tried  or  heard  the  trial  of  a  single 
case  in  admiralty,  and  it  is  evident  from  a  reference  to  his  opinion  as  to  the  validity 
of  this  sale,  that  he  was  misled  by  the  general  phraseology  of  Judge  Washington 
in  this  case  as  to  the  sale  by  De  Koven,  the  importer  in  that  case,  without  reflect- 
ing that  this  sale,  thus  held  valid,  was,  alter  the  importer  had  paid  the  penalty  by 
his  bond,  and  repurchased  at  the  appraised  value  from  the  government. 

The  court  say  in  regard  to  the  rule  which  avoidti  the  contract  as  unlawful,  that 
"so  far  as  the  rule  operates  to  Jiscourage  the  perpetration  of  an  ir  -noral  or  illegal 
act,  it  is  founded  in  the  stror  gest  reason."  Now  if  the  importer  cannot  sell  the 
slaves,  and  in  the  langv.ge  of  Chief  Justice  Marshall,  in  12  Wheat.  439,  "  no 
(slavi's)  would  be  imported  if  none  could  be  sold"  by  the  importer,  would  it  not 
then  "  discourage  the  perpetration  of  the  immoral  or  illegal  net"  of  importation  for 
sale.'*  Would  such  a  construction  "extend  the  sale  beyond  the  policy  which  in- 
troduced it.^"  Would  it  "lead  to  the  most  inconvenient  consequences.'*"  What 
inconvenience  is  it  except  to  the  violator  of  the  law,  that  he  cannot  recover  the 
price  of  the  slaves  unlawfully  introduced  for  sale  Judge  Washington  admits  that 
the  contract  cannot  be  enforced  where  it  "  grows  immediately  out  of,  and  is  con- 
nected with  an  illegal  or  immoral  act;"  so  uIdo  he  says  "  if  the  contract  be  in  part 
only  connected  with  the  illegal  act,  and  growing  immediately  out  of  it,  though  it 
be  in  fact  a  nein  contract,  it  is  equally  tainted  by  it."  Nov/,  does  the  subsequent 
sale  grow  out  of  the  ;  jportation  for  sale,  or  has  il  no  connection  with  itP  Chief 
Justice  Marshall,  in  12  Wheat.  447,  says:  "  Sale  is  the  object  of  importation,  and  it 
is  an  essential,  ingredient  of  that  intercourse  of  which  importation  constitutes  a  part. 
It  is  as  essential  an  ingredient,  as  indispensable  to  the  existence  of  the  entire  thing, 
then,  as  importation  itself."  Now,  if  the  right  of  sale  constitutes  a  part  of  the  right 
of  importation  for  sale,  and  is  an  essential  ingredient  of  that  right,  how  can  it  be 
said  that  the  sale  had  no  connection  wilh  the  illegal  introduction  for  sale,  for 
though  the  sale  by  the  importer  "  be  in  fact  a  new  contract,  it  is  equally  tainted" 
by  the  unlawful  importation  by  him  for  sale.  And  recollect,  that  Chief  Justice 
Marsiiall  was  speaking  in  the  case  cited,  of  the  introduction  of  foreign  goods  for 
sale  by  the  importer,  and  that  the  decision  was  confined  to  him  only;  it  being  de- 
clared Ihat  the  right  of  sale  by  the  importer  was  considered  "  as  a  component  part" 
of  the  right  of  importation.  We  may  then  safely  consider  it  an  established  rule 
that  wherever  "sale  is  the  object  of  impurliition,"  it  is  essentially  connected 
with  and  grows  immediately  out  of  the  imporlalion;  and  that  as  a  consequence, 
wherever  the  introduction  for  sale  is  prohibited,  the  sale  by  the  importer  will  be 
unlawful. 

In  the  case  ex  parte  Bell,  1  Maule  and  Selw.  751,  it  was  decided,  that  money 
advanced  by  S.  to  B.  one  of  several  partners,  out  of  the  partnership  funds,  on  account 
of  payments  lobe  made  (on  unlawful  injnninces)  in  pursuance  of  a  previous  agree- 
ment between  them  to  become  sharers  in  profit  and  loss  on  such  policies,  was  held  not 
provable  under  the  commission  of  S.,  who  became  b'lnkupt,  by  the  surviving  partners 
of  B.,  "although  the  surviving  partners  were  ignorant  of  the  illegal  character  of  the 
advances."  In  this  case  it  was  strongly  contended  that  this  was  a  contract  collateral 
to  and  independent  of  the  original  transaction."  But  the  courttdecided  tlint  there 
could  be  no  recovery,  and  established  the  principle  that  "  money  advanced  for  the 
purpose  of  carrying  on  a  smuggling  transaction  or  any  other  illegal  traffic,"  could 


ill  I 


i 


I    I 


XXXil 


Grotes  et  al.  v.  Slavghter. 


not  be  recovered.  And  lee  8  T.  R.  71& ;  6  T.  R.  482 ;  and  Sullivan  v.  Oravei,  1 
Park'*  Iniu.  8. 

Ill  Mitchell  V.  Cockburne,  2  H.  Black.  336,  the  court  decided  that,  where  A.  and 
B.  are  engaged  in  a  partnershi|t  in  insuring  ships,  «&c.,  which  is  carried  on  in  the 
name  of  A.,  and  A.  pays  the  wliule  of  the  losses,  such  a  partnership  being  illegal,  A. 
cannot  maintain  an  action  against  U.  to  recover  a  share  of  the  money  that  has  been 
so  paid.  The  alleged  illegality  of  the  partnership  was  founded  on  the  belbremen- 
tioned  statute,  forbidding  insurances  by  piirtnerships ;  but  it  wo*  alleged  that  this 
only  extended  to  public  partnerships,  and  tliut  the  collateral  contract  might  be  valid 
by  one  partner  to  pay  over  to  his  cu- partner  his  share  of  the  profits  recovered.  The 
court  said  :  "The  cases  which  have  been  cited,  were  one  step  removed  from  the 
illegal  contract  itself,  and  did  not  arise  immediately  out  of  it."  "Thus  in  Faikney 
V.  HeynouB,  the  bond  was  given  to  secure  the  repayment  by  a  third  person,  of  his 
proportion  of  the  money  paid  by  the  plaintitf,  in  stock-jobbing ;  and  in  Fetrie  r. 
Hnnnaij,  the  money  had  been  paid  to  the  broker  by  Keehle,  and  the  action  was 
brought  to  reimburse  his  e.xecutors  for  the  defendant  s  share.  In  that  case  indeed, 
Lord  Kimijon  seemed  to  be  of  opinion  that  the  action  could  not  be  maintained,  and 
it  was  decided  expressly  on  the  authority  of  Faikney  v.  Reynous.  But,  perhaps,  it 
would  have  been  better  if  it  had  been  decided  otherwise  ;  for  when  the  principle  of 
a  ca.se  is  doubtful,  I  think  it  hettcr  to  overrule  it  at  once,  than  build  upon  it  at  all. 
But  be  Ihut  us  it  may,  it  is  suliicient  now  to  say,  that  those  cases  are  one  step  short 
of  the  direct  illegal  transaction,  but  that  the  present  case  arises  immediately  out 
of  it." 

"  Heath,  J.,  I  am  of  the  same  opinion.  It  seems  to  me  that  the  object  of  the 
ttatutt  would  he  totally  defeated,  if  it  were  to  extend  only  to  those  policies  in  which 
the  names  of  all  the  partners  were  inserted." 

■'  With  respect  to  the  case  of  Petrie  r  Ilannay,  one  judge  there,  (Ashhurst,) 
hinted  that  his  opinion  might  have  been  different,  if  the  question  had  been  res  in- 
tcgra,  and  Lord  Kenyon  dissented." 

But,  if  this  caee  of  Petrie  v.  Hannay,  were  the  law,  it  would  only  establish  the 
principle,  that  an  innocent  third  person,  from  whom  a  loan  is  made,  to  pay  a  debt 
in  which  he  had  no  connection  or  participation,  arising  out  of  an  illegal  transac- 
tion, that  this  titird  person  can  recover,  even  although  the  borrowed  money  is 
applied  by  the  borrower  to  pay  a  debt  arising  out  of  such  unlawful  transaction. 
There,  the  Mirty  whose  right  was  upheld,  had  no  participation  in  the  illegal  trans- 
action ;  heiL',  the  plaintiff  is  the  guilty  transgressor:  there,  the  person,  Portis, 
through  whose  rights  the  recovery  was  had,  in  the  language  of  Justice  Ashhurst, 
"  was  not  concerned  in  the  use  wiiich  the  other  made  of  the  money,  it  was  ft  fair 
and  honest  transaction,  as  between  tiiose  parties."  And  Faikney  v.  Reynous,  pro- 
ceeds on  the  same  principle.  Was  this  a  fair  and  honest  transaction  on  the  part  of 
the  plaintiff.'  Was  it  fair  and  honest  for  the  slave  trader  in  this  case,  with  intent 
to  sell,  to  introduce  the  slaves,  in  defiance  of  law,  and  consummate  that  unlawful 
intention  by  the  sale  i*  The  case,  then,  of  Petrie  and  Hannay  would  prove  nothing 
at^ainsit  us,  but  as  it  has  been  repeatedly  di.'^regarded,  and  the  distinction  between 
malum  prohibitum  and  malum  in  se,  exploded  in  England  and  America,  the  deci- 
sion in  such  a  case  against  the  plaintiff,  would  go  far  beyond  the  present;  for,  if  a 
broker,  who,  at  the  winding  up  of  a  partnership,  paid  debts  due  third  persons, 
arising  out  of  illegal  transactions,  in  which  he  had  no  participation,  interest,  or  con- 
cern, could  not  recover  the  money  thus  advanced  after  the  conclusion  of  ail  these 
unlawful  transactions,  on  the  subsequent,  new,  distinct,  and  independent  contract, 
on  the  part  of  an  innocimt  third  person,  what  hope  could  the  slave  trader  plaintiff 
have  of  a  recovery  in  this  case  .-•  And  yet  the  English  law  is  now  settled,  that 
such  third  person  could  not  recover. 

In  the  case  of  Booth  v.  Hodgson,  6  T.  R.  409,  it  was  expressly  conceded,  that 
under  no  case,  not  even  that  of  Faikney  v.  Reynous,  was  it  ever  supposed  "  that 
one  delinquent  can  maintain  an  action  against  another." 

DitHculties  arose  as  to  the  pleadings  on  the  bond  in  the  case  of  Faikney  v.  Rey- 
nous, upon  the  ground  that  the  defence  was  not  properly  before  the  court,  and 
therefore,  in  Petrie  v.  Hannay,  Lord  Kenyon,  did  not  expressly  overrule  this  case 


^-  Or»vM,  1 

where  A.  and 
ied  on  in  the 
1? ''legal,  A. 
t'lat  has  been 
betbrenien- 
««1  that  this 
ight  be  valid 
overed.  The 
ed  from  tlie 
'1  Faikney 

•rson,  of  his 
in  Petriev. 
action  was 

iase  indeed, 
tained,  and 
perhaps,  it 

principle  of 

m  it  at  all. 
f  tep  short 

tJiately  out 

^'JMt  of  the 
»  in  which 

'^shhurst,) 
sen  rea  in- 

iblish  the 
>ay  ,1  debt 
il  transac- 
nioney  ig 
msaction. 
?ul  trans- 
>,  Partis, 
^shhurst, 
'''as  a  fair 
Oils,  pro- 
e  part  of 
h  intent 
inlawful 
nothing 
>etween 
16  deci- 
foT,  if  a 
'ersons, 
or  con- 
1  these 
n  tract, 
laintiff 
d,  that 

),  that 
"  that 

Rey. 
,  and 
case 


Grovea  et  al.  v.  Slaughter, 


XXXIll 


of  Faikney  r,  Reynnua,  but  if  not  determined  on  the  form  of  the  plea,  he  did  most 
ezpruHHiy  disMent  from  it,  esppciaily  tlie  (lixtinctiiiii  between  malum  prohibitum  and 
malum  \n»e,  saying,  "  if  one  of  two  partufrs  advunce  money  in  asmuggliiig  trans- 
action, lit!  cannot  recover  his  proportion  of  itngainst  his  pailner,  because  the  trans- 
action iH  prohibited  ;  and  yet  Hinuggling  Ih  not  malum  in  ne  as  contradislinguiiihed 
from  malum  /irohihitiim."  The  reHt  of  the  court  who  did  not  think  Fuikney  and 
KeynoiiH  wns  decided  on  the  pleudinirH,  Hiiid,  in  tliiil  case,  "Lord  Mansfield  and 
the  wiioie  court  proceeded  on  the  ground,  tliiil  as  it  wiin  not  malum  in  sk,  but  only 
malum  /irohihitum,  and  as  tlie  plaintiff  waH  not  concerned  in  the  use  which  the 
other  in.'ide  of  tiiu  money,  it  was  a  fair  and  lloneHt  transaction,  as  between  those 
parties.  "     3  T.  II.  422. 

Now,  if  the  distinction  between  malum  prohibitum  and  malum  in  se,  be  now 
entirely  e.xploded,  as  these  two  cases  of  Faikney  and  I'etrie  proceeded  on  that  dis- 
tinction, tiiey  must  botii  fall  to  the  ground. 

In  Aubert  v.  Maze,  2  Uos.  &  Ful.  370,  it  was  decided,  that  "money  paid  by 
one  of  two  parties  for  the  other  on  account  of  losses  incurred  by  them  in  partner- 
ship insurances,  cannot  bo  recovered  in  an  action  brought  by  him  against  the  other 
partner.  And,  if  this,  with  other  causes  of  dispute  i)e  referred  to  an  arbitrator,  who 
awards  a  sum  due  from  one  to  the  other  for  money  so  paid,  the  court  will  set  aside 
that  part  of  the  award."  In  deciding  this  case.  Lord  LOidon,  Chief  Justice,  said  : 
"  Smne  of  t!ie  cases  on  this  subject,  especially  that  of  Petrie  v.  Hannay,  have  pro- 
ceeded oti  a  dirinction,  the  soundness  of  which  I  very  much  doubt."  Referring 
again  to  the  iwo  cases  of  Faikney  v.  Reynous  and  Petrie  v.  Hannay,  Lord  Eldon, 
after  quoting  the  statement  of  C.  J.  Eyre,  in  Mitchell  v.  Cockburne,  that  "  it  would 
have  been  belter  if  they  had  been  decided  otherwise,"  adds  as  his  own  opinion, 
"  Indeed  it  seems  to  me,  that  if  the  principle  of  those  cases  is  to  be  supported,  the 
act  of  parliament  will  be  of  very  little  use."  After  giving  it  as  his  opinion  that  the 
cases  of  Booth  v,  Hodgson,  and  Mitchell  v.  Cockburne,  were  opposed  to  those  of 
Faikney  v.  Reynous,  and  Petrie  v.  Hannay,  he  states  :  "  In  addition  to  this,  the 
cases  of  Steers  v.  Lashley,  and  Brown  v.  Turner,  7  T.  R.  630,  stand  in  opposition 
to  Petrie  v.  Hannny,  Foikney  v.  Reynous,  and  Watts  v.  Brooks.  With  respect 
to  Petrie  v.  Hannay,  very  great  weight  is  due  to  the  opinion  of  Lord  Kenyon,  who 
dissented  from  the  rest  of  the  court." 

Heath,  Justice,  concurred  and  disapproved  the  distinction  between  malum  in  se 
and  malum  prohibitum. 

Yorke,  Justice,  said:  "  I  perfectly  agree  with  my  brother,  Heath,  in  reprobating 
any  distinction  between  malum  prohilntum  and  malum  in  se,  and  consider  it  preg- 
nant with  mischidf  Every  moral  man  is  as  much  bound  to  obey  the  civil  law  of 
the  land  as  the  law  Denature." 

Chambre,  Justice,  concurred  and  expressed  his  dissent  from  the  cases  of  Faik- 
ney  and  of  Petrie.     See  3d  East,  222. 

In  Steers  v.  Lashley,  6  T.  R.  61,  "  A.  being  employed  as  a  broker  for  B.  in 
stock-jobbing  transactions,  paid  the  differences  for  him  ;  a  dispute  arising  between 
them  as  to  the  amount  of  A's.  demand,  the  matter  was  referred  to  C.  who  awarded 
£300  to  be  due ;  on  which,  A.  drew  on  B.  for  iilOO,  part  of  the  above,  and  endorsed 
the  bill  to  C.  after  B.  had  accepted  it  held,  that  C.  could  not  recover  on  the  bill." 
Lord  Kenyon,  being  of  opinion,  that  n  "  the  bill  grew  out  of  a  stoclc-jolibing  trans- 
action,  which  was  known  to  the  plaintiff,  he  could  not  recover."  It  was  urged  on 
the  authority  of  Petrie  v.  Hannay,  that  "  as  tlie  broker  had  actually  paid  the  differ- 
ences for  his  employer,  the  bill  in  question,  which  was  to  secure  him  repayment  of 
what  he  had  paid,  was  not  vitiated  by  the  original  transaction  between  the  defendant 
and  those  icith  whom  he  dealt."  It  was  said,  that  "  This  is  not  an  action  to  recover 
the  differences  of  the  "'rck-jobbing,  nor  is  it  brought  by  either  of  the  parties  to  those 
transactions  ;  but  by  in  innocent  person  on  a  bill  of  exchange,  drawn  by  the  broker 
on  his  principal,  fo'  sums  of  money  actually  paid  by  the  broker,  and  for  the 
balsnce  of  his  accour.t ;"  but  the  plaintiff  was  not  permitted  to  recover.  Here,  the 
broker  had  no  interest  in  the  stock-jobbing  transactions,  but  simply  advanced  the 
differences  arising  out  of  these  transactions  as  due  by  the  defendant,  for  which 
advances  he  received  from  the  defendant  the  bill  in  question.    In  Brown  v.  Turner, 


!l 


I 


XXXIV 


Groves  ei  al,  v.  Slaughter. 


«  - 


7  T.  R.  626,  it  WM  ruled,  tlint  "  if  a  broker  draw  on  liii  employer  for  diflTorencei 
paid  tor  him  in  itocii-jobbinjj  tranititctiona,  and  the  employer  accept  the  bill,  and 
then  the  broker  endorse  it  to  u  third  pereon  at\er  it  ia  due,  the  latter  cannot  recover 
un  the  bill." 

In  (7iinnon  v.  Dryce,  3  Barn.  &  Aldennn,  179;  it  waa  adjiid}{ed,  that  "  monnj 
Unt  iiiul  iipplied  by  the  Imrrower,  tor  the  HxprfMit  purpoae  of  Multliiiff  loHMea  or  ille- 
gal Mtiick-jobbin({  triiiiMUntiDnM,  to  which  t/u  lender  wan  no  party,  cannot  be  recovered 
back  by  hint."  In  tiiin  cave  A.,  who  waa  not  a  broker,  and  not  concerned  in  any  of 
die  illiiful  transactiutu),  alter  all  theiie  traiiHactiona  were  clotted,  loaned  money  to  J)., 
to  enubjt;  him  to  pny  the  |oi-<e8  which  he  h  id  euHtnined  in  thone  tranituclionM,  and 
B.  ^iive  hid  bond  for  re|)uyment,  and  yet  it  waH  ruled  that  no  recovery  could  be  had 
on  thn  bond.  We  hud  seen  it  decided  in  Lanii;ton  v.  Hughes,  which  is  atlirmed  here, 
that  however  it  may  be  as  to  sales  ubroiid,  where  tiie  parties  know  that  the  goods 
are  boii>rht  with  u  view  to  evade  the  revenue  lawn  of  another  country,  which  the 
courtu  dticline  to  notice,  yet  tiiut  sales  made  in  tlntflond  of  un  innocent  article, 
such  as  ginger  to  a  brewer,  to  be  usted  in  making  beer,  against  a  prohibition  of  the 
use  of  ginger  by  brewersi  in  making  beer,  is  void.  And  here  we  find  that  money 
loaned  by  un  innocent  third  person,  to  ennble  another  to  pay  losses  which  he  hud 
sustained  in  illegal  transactions,  cannot  be  recovered.  Mere,  when  the  money  was 
louned,  the  otfeiice  of  stock-jobbing  had  been  committed  ;  the  loan  of  the  money  tu 
pay  the  losses  was  u  new,  Hubftecpient,  distinct,  and  independent  contract,  and  yet 
even  such  contract  wr.s  void,  as  against  the  policy  of  the  law.  The  court  said, 
"On  the  part  of  the  plaintitf,  it  was  contended,  tliat,  as  he  was  not  a  party  to  the 
illeg:  1  transaction,  the  loun  was  not  illegal."  "The  authorities  principally  in 
favour  of  the  jiluintijf,  are  those  of  Fuikiiey  v.  Reynous,  and  I'etrie  v.  Ilannay. 
The  propriety,  however,  of  these  dfcisions,  lias  been  ([uestionejl  in  the  several  sub- 
sequent cases,  that  were  cjuoted  on  the  purt  of  the  defendant;  and  the  distinction 
taken  in  the  former  of  them,  between  malum  prohibitum  and  malum  in  se,  was 
expressly  disallowed  in  the  case  of  Aubert  v.  Maze.  Indeed,  we  think  no  such 
distiction  can  be  allowed  in  a  court  of  law  :  the  court  is  bound  in  the  administra- 
tion of  the  law,  to  consider  every  act  to  be  unlawful,  which  the  law  has  prohibited 
to  be  done  ;"  and  the  bcmd  for  the  money  loaned,  was  held  void.  It  was  not  pre- 
tended that  the  statute  in  this  case  declared  loans,  or  notes,  or  bonds  for  money 
loaned,  to  pay  the  losses  in  this  case,  unlawful,  or  that  it  inflicted  any  penalty  on 
such  loans,  or  that  such  lender  could  be  fined  or  punished  in  any  way;  but  to  en- 
gage in  such  stock-jobbing  transactions  was  illegal,  and  therefore  to  prevent  the  vio- 
lation of  the  statute,  even  the  lender  could  not  recover  money  loaned  to  j)ay  losses 
arising  out  of  such  transactions,  even  after  these  losses  iiad  all  been  incurred. 

The  case  arising  out  of  a  bankruptcy,  I  have  transposed  the  words,  plaiT'tiff  and 
defendant,  in  the  text,  to  avoid  a  periplirusis.  And  now  since  this  case,  decided  in 
1819,  I  cull  upon  the  opposing  counsel  to  show  a  single  case,  in  which  the  author- 
ity of  either  of  these  decisions  of  Faikney  v.  Peirie,  have  been  recognised. 

In  Cuinbden  v.  Anderson,  6  T.  R.  723,  1  Bos.  &  Pul.  271,  it  wusudjudged  that 
"the  exclusive  right  of  trading  to  the  E.  Indies,  granted  to  the  E.  I.  Company,  by 
9,  10  W.  3,  has  never  been  put  an  end  to,  and  any  infringement  of  it  is  a  pub- 
lic wrong.  Though  such  parts  of  that  act  as  inflicted  penalties,  &-c.,  were  repealed 
by  33  G.  3,  c.  52,  and  though  the  latter  act  says,  that  no  acts  or  parts  of  acts  there- 
by repealed,  shall  be  pleaded  or  set  up  in  bar  of  any  action,  &c.,  it  is  competent  to 
underwriters  who  have  subscribed  policies  on  ships  trading  to  the  E.  Indies  in  con- 
travention of  9,  10  W.  3,  to  avail  themselves  of  the  illegality  of  such  trading,  in  an 
action  on  the  policies."  The  court  in  that  case  said  these  plaintiffs,  "  may  still 
insist  that  the  exclusive  trade  of  the  company  is  no  more  than  their  private  right, 
the  infringement  of  which  may  perhaps  give  a  right  of  action  to  the  company,  as 
for  a  civil  injury  over  and  above  the  several  parliamentary  provisions  which  have 
been  made  for  securing  it,  but  can  have  no  other  effect,  and  particularly  cannot 
taint  with  illegality,  transactions  and  contracts  which  are  collateral  to  it."  "  When 
this  point  was  suggested  in  the  course  of  the  argument,  Mr.  Rous  answered,  that 
the  exclusive  trade  of  the  company  was  a  public  regulation  of  the  national  com- 
merce, and  this  was  a  very  good  general  answer,  but  I  will  enter  a  little  further 


m 


Gron-x  et  al.  r.  Shi iiff filer. 


xsxv 


«■  for  di/r«renc«i 
"P'  the  bill,  and 
'  cannot  recover 

"int  "  moneij 
'H  loHnen  or  ille- 
lot  h«  recovered 
cerncd  in  unij  of 
I'd  niont-y  to  U. 
nnmictionM,  and' 
''y  could  |j«  had 
«» alliriii..d  liere, 

tilUt  I  In.  jroods 

'itnj,  wliid,  the 
noeent  article, 
'liiljilion  of  the 
"•i  that  money 
*  which  he  hud 
t'lt!  money  nus 
'  t'le  money  to 
'"ract,  and  yet 
''i**  court  said, 
1  l>"rty  to  the 
princijmlly  in 
'«  V.  llunnny. 
le  Beverul  sub- 
I'le  'iintinction 
urn  in  se,  was 
Ihink  no  such 
i«  idministra- 
''08  prohibited 
t  was  not  pre- 
ids  /'or  money 
"y  penalty  on 
y;  but  to  en- 
event  the  vie- 
to  pay  losses 
"curred. 
pt'iiptijf  and 
e>  decided  in 
'  tile  author- 
sed. 

Jjudged  that 
'ompuny,  by 

•t  is  a  pub- 
ere  repealed 
facts  there- 
ompetent  to 
dies  in  con- 
•iding,  in  an 

"  'nay  still 
ivate  right, 
Jmpony,  as 
vhich  have 
^rly  itannot 
"  When 
';ered,  that 
ional  com- 
le  further 


I 


into  the  diMCUMion  nf  it.  The  exniunive  trade  of  the  E.  I  Tonipany,  is  now  so 
interwoven  with  the  (general  iriterei>t«  of  ilie  htile,  that  it  ik  uh  loiitrer  to  h«  t'onnidered 
as  tlie  private  ri^ht  of  a  corporatinn,  hut  i*  liecoine  a  grent  naltonul  concern,  and 
the  infi  inj^eiiient  <<('  it  a  piililiv  minrhtrf,  and  an  hmcIi  iM  prii|iil)itr<l  by  the  cinnmun  law. 
The  prini'ipje  and  the  etfect  of  tliiil  prohil)itiiin,  aH  applied  to  the  prenetit  case, 
may  lie  cullected  from  the  cane  of  a  bond  ^Iveii  to  the  Hli)-riir,  to  iniieiiiiiiry  him 
against  the  voluntary  etx'ape  of  IiIm  priMoMer,  wliii'li  in  proiinuiirfd  to  be  void  liy  the 
common  law."  Mere  then  it  wait  conlerideil  iliat  the  law  "  ciinnot  taint  with  ille- 
gality, IraiiHactions  and  conlnictH  whii;h  are  collateral  to  it  ;  and  the  court  deemed 
UoiHH  auMwer  to  ihiH  poxition  irnnil,  that  even  the  collaleraj  contract  was  ille|;al 
"  where  it  cimcerned  n  puldic  rejiruli'tiiin  of  the  national  commerce."  VVbm  not  this 
"  a  puliiic  rei(ulalion,"  liy  llie  coiiNlilulion  ilgelf  of  the  <r«/^"f  «'«  ,v/rtrr.v.''  Hut  aj^ain, 
the  Court  coUHidered  the  c(dlaleriil  contract  void,  where  it  arose  out  of  a  |iroliibited 
tratlic,  and  aUo  that  the  infringement  of  the  statute  was  "a  public  mischief  and  a 
public  wron^."  And  was  not  the  slave  trade,  as  pridiibited  by  the  framers  of  the  con- 
stitution of  MiHsJHsippi,  conHidered  by  them  "  a  jtulilic  mischief,  and  a  public  wrong," 
endnngerinif,  as  they  conceived,  (he  welfare  and  security  of  the  people  of  JVlissis- 
sippi  :  and  if  so,  was  the  transiftessor  of  such  a  fimdament.il  law  on  such  a  subject 
permitled  to  say  that  the  contract  was  collateral .''  The  court  add  in  this  case,  "  If 
we  find  an  action  brou||rht  u|m>u  a  contract  for  a  few  bays  of  tea,  or  a  few  tubs  of 
foreijrn  spirits,  bought  or  sold  in  the  course  of  a  contraband  tra<le,  we  say  without 
hesitation,  this  is  a  contract  a<;ainst  law,  and  no  action  can  be  maintained  upon  it." 
And  in  Farmer's  case.  Chief  Justice  Kyre  went  still  further,  and  declared  "  that 
violatinir  a  prohibition  of  u  species  of  commerce  in  which  the  interest  of  the  country 
was  crmcerned,  was  not  merely  mahini  prohibitum,  but  malum  in  ac."  Apply  that 
principle  tf)  this  case. 

The  hijrh  court  of  errors  and  appeals  of  our  state,  have  said  in  regard  to  the  case 
al)ove  cited,  as  to  the  inter-state  slave  trade,  as  follows:  "The  cotjvenlion  deemed 
that  the  time  had  arrived,  when  the  tratt'ic  in  this  species  of  property  as  merchan- 
dise, should  cease.  They  had  seen  and  (le|)lored  the  evils  connected  with  it.  The 
barbarities,  the  frauds,  the  scenes  so  shockiriir  in  many  instances  to  our  feelings  of 
humanity,  aiul  the  sensibilities  of  our  nature,  wliich  generally  grow  out  of  it  ;  they 
therefore  determined  to  |)rohil)it  it  in  future  Another  alarming  evil  grew  out  of  it, 
which  was  highly  dangerous  to  the  moral  and  orderly  condition  of  our  own  slaves, 
and  that  was  the  introduction  of  slaves  from  aliroad  of  depraved  character,  which 
were  imposed  upon  our  imauspecling  citizens,  by  the  artful  and  too  often  un.'fcrupu- 
lous  negro-trader.  This  was  intended  to  be  suppressed.  Perhaps  another  objei't  was 
to  prevent  a  too  rapid  increase  of  the  slove  population  in  our  state.  The  cardinal 
policy  of  the  state  was  then  to  suppress  this  trade  ;  and  this  is  what  is  prohibited." 
And  who  will  deny  the  truth  of  this  statetnent?  Did  not  the  entire  South,  with 
perfect  unanimity,  unite  with  the  North,  in  making  Ihe  African  slave  trade  piracv, 
and  punishing  those  engaged  in  that  trade  with  dralli  ."  And  this  inter-state  slave 
trade  is  prohibited  as  hiirhly  criminal  by  the  slave  holding  states  ;  and  in  (leorgia 
tlie  guilty  transgressors  of  the  law  must  take  their  place  for  years  with  felons  in 
the  cells  of  a  penitentiary. 

These  traders  have  filled  many  of  the  states  with  insurgents  and  malefactors,  and 
who  will  deny  the  "barbarities."  "the  frauds,"  the  "shocking  scenes,"  "the 
alarming  evils,"  which  grew  out  of  this  traffic  .'  who  will  deny  that  the  dispropor- 
tionate augmentation  of  the  slave  over  ihe  white  population,  so  rapidly  progressing 
prior  to  this  prohibition,  was,  if  not  arrested,  endangering  the  lives  of  many  of  our 
citizens,  and  that  to  arrest  this  traffic,  was  "  the  cardinal  policy  of  the  state  ?"  If 
then,  the  slave  traders  subjected  the  state  to  all  these  dangers,  why  was  not  this 
traffic  malum  in  se .'  and  if  so,  no  collateral  contract  arising  out  of  siich  a  traffic 
shall  be  maintained  by  the  guilty  offender,  much  less  the  very  contract  of  sale  by 
the  slave  trader  of  the  slaves  thus  illegally  introduced  for  sale.  If,  as  a  consequence 
of  the  prosecution  of  this  traffic,  the  scenes  of  Southampton  Iiad  been  re-enacted 
within  our  limits,  would  not  the  blood  of  every  innocent  victim  have  crimsoned  the 
hands  and  stained  the  soul  of  the  trader,  whose  prosecution  of  this  prohibited  traffic 


i 


XXXVI 


Groves  et  al.  v.  Slaughter. 


had  produced  these  dreadful  consequences.  And,  if  the  vigilance  of  the  state  and 
final  enforcement  of  the  prohibition  have  prevented  these  consequences,  the  trader 
was  no  more  free  from  crime,  than  is  he  who  throws  the  torch  of  insurrection 
among  us,  because  it  has  not  yet  exploded  any  of  the  combustible  materials  within 
our  limits.  These  traders  have  offended  against  the  majesty  of  the  laws  and  the 
sovereignty  of  the  people  of  Mississippi  ;  they  have  put  in  jeopardy  the  lives  of 
our  citizens,  disregarded  our  cardinal  policy,  and  trampled  under  their  feet  the 
sacred  prohibitory  enactments  of  the  constitution.  And  shall  such  oifenders  come 
into  a  court  of  justice,  and  through  its  decrees,  reap  the  fruits  of  their  trans- 
gressions .'' 

In  Wilkinson  v.  Lousondack,  3  Maule  &  Sel.  117,  it  was  decided,  that  "  The 
stat.  47,  G.  3.  which  repeals  so  much  of  the  statute  of  Ann,  as  vests  in  the  South 
Sea  Company  the  exclusive  privilege  of  trading  to  parts  within  certain  limits,  ex- 
tends only  to  such  places  within  thos3  limits,  as  were  at  the  time  of  passing  the 
act,  or  at  any  time  since,  in  the  possession  of,  or  under  the  dominion  of  his  majes- 
ty ;  and  therefore,  an  action  was  held  not  to  lie  against  the  defendant  for  not  safely 
stowing  and  conveying  goods  of  the  plaintiff  from  London  to  Buenos  Ayres,  which 
place  was  captured  by  his  majesty's  forces,  but  afterwards  recaptured  before  the 
passing  of  the  act,  and  the  shipment  of  the  goods  ;  although  the  goods  were  shipped 
under  the  sanction  of  an  order  in  council  purporting  to  authorize  the  voyage,  and  the 
recapture  was  unknown  when  the  goods  were  shipped  and  the  voyage  com- 
menced." The  case  states,  that  the  goods  were  shipped  at  London,  October  26, 
1806,  and  the  freight  there  paid,  for  transportation  to  Buenos  Ayres,  to  which  port 
the  ship  sailed.  Buenos  Ayres  was  recaptured  from  the  British  "  by  the  Spaniards 
in  August,  1806;  but  that  tact  was  not  known  in  England  at  the  time  of  the  ship- 
ment of  the  goods  and  commencement  of  the  voyage."  It  was  agreed  "  that  his 
majesty's  order  in  council,  dated  Sept.  17,  1806,  purporting  to  legalize  the  trad^e, 
should  be  read  as  part  of  the  case  by  either  party."  This  order  in  council  is  given 
in  the  case,  and  reciting  that  Buenos  Ayres  had  been  conquered  by  the  British, 
and  "  was  then  in  his  majesty's  possession,"  authorized  full  and  free  trade  there  by 
the  plaintiff  and  all  others.  Immediately  after  the  order,  and  with  a  view  to 
legalize  it,  the  stat.  47  Geo.  3,  c.  23,  was  passed,  repealing  after  the  date  of  the 
order  in  council,  (17th  Sept.  18C6,)  as  was  conceded,  every  thing  in  that  of  Ann, 
making  voyages  illegal  to  all  places  to  which  it  was  heretofore  forbidden,  "  which 
now  are,  or  at  any  time  hereafter  shall,  or  may  be  belonging  to,  or  in  possession  of 
his  majesty."  The  intention  of  parliament  was  to  confirm  the  order,  the  act  going 
into  effect  at  the  date  of  the  order.  But  the  king  in  council  were  mistaken,  and 
the  parliament  was  mistaken,  and  the  parties  were  mistaken,  when  they  entered 
as  was  admitted  bona  fide  into  this  contract;  for  in  August,  1806,  Buenos  Ayres 
had  been  most  unexpectedly  taken  by  the  Spaniards,  and  therefore  the  words  of  the 
act  of  parliament  did  not  reach  the  case.  Yet,  the  counsel  in  thnt  case,  did  not 
venture  to  contend  that  even  the  royal  mandate  by  the  king  in  council  could  render 
nugatory  a  preceding  prohibition  of  an  act  of  parliament,  as  it  seems  to  be  urged 
upon  the  court  in  this  case,  and  that  the  supposed  tax  law  may  render  inoperative 
a  provision  of  our  constitution  ;  but  they  did  contend  that  the  language  of  the  act 
of  parliament,  of  47  G.  3,  reciting,  as  it  did,  the  very  date  of  the  order  in  council, 
and  to  go  into  effect  from  that  date,  did  legalize  and  adopt  that  order.  The  plaintiff 
also  contended,  that  the  case  arising  out  of  a  "  collateral  damage"  to  the  goods  by 
the  negligence  and  improper  conduct  of  the  defendant,  by  having  been  "  torn  and 
perforated  by  iron  bolts,  and  otherwise  damaged  and  spoiled,"  that  the  illegality  of 
the  voyage,  even  were  it  illegal,  did  not  affect  this  collateral  claim,  which  was 
distinct  and  independent.  But  the  court  decid  1  that  the  plaintiff  did  well  to 
admit  that  an  order  of  the  king  in  council  cculd  not  render  inoperative  a  preceding' 
act  of  parliament;  that  the  claim  for  the  damages  to  the  injury  of  the  goods  grew 
out  of  the  contract  of  freight;  and  that  the  contract  was  invalid,  because  it  related 
to  a  voyage  that  was  illegal.  The  court  said  :  "  The  only  remaining  argument  in 
favour  of  the  plaintiff  was,  that  there  had  been  no  wilful  contravention  of  the  law  ; 
both  parties  thought  they  were  acting  legally  ;  but  their  misapprehension  of  the  fact. 


i 


\ 


V,,. 


Groves  et  al.  v.  Slaughter. 


xxxvn 


or  the  law  cannot  alter  the  character  of  the  contract,  which  the  court  is  called  upon 
by  this  action  to  enforce." 

In  the  case  of  Griswold  v.  Waddington,  15  John.  37;  16  John.  438,  it  was 
decided,  that  wiiere  there  was  a  partnership  existing  before  the  late  war  with  Eng- 
land, one  partner  residing  here  iind  tlie  other  in  England,  and  where  a  balance 
arose  in  a  partnership  ai'count  on  bills  upon  England,  remitted  there  from  this 
country  during  the  war,  there  could  be  no  recovery,  even  after  the  peace,  on  such 
account ;  all  trading  between  our  citizens  and  British  citizens  being  contrary  to 
the  war  policy  of  the  country,  and  although  it  was  distinctly  proved  as  part  of  the 
case,  that  such  remittances  were  impliedly  sanctioned  by  the  executive  branch  of 
the  government  of  the  Union;  that  they  were  innocent  in  intention,  being  remit- 
tances not  of  money  or  specie,  but  of  bills,  and  the  government  itself  having 
remitted  during  the  war  bills  drawn  on  England.  But  the  practice  or  sanction  of 
the  executive,  nor  the  innocence  of  the  intention  of  the  parlies  would  avail,  even 
after  peace  was  declared,  to  induce  the  court  to  give  validity  to  any  contract,  ex- 
press or  implied,  repugnant  to  the  policy  of  the  law. 
In  deciding  this  case.  Chancellor  Kent  said  : 

"An  objection  to  the  perfidirns  character  of  the  defence  is  not  to  be  endured."' 
Lord  Hardwicke  disregarded  it  in  the  case  in  7  Vesey,  317.  "Several  cases,"  says 
he,  "at  common  law  and  in  equity,  have  gone  upon  this,  that  if  the  contract  relates 
to  an  illicit  subject,  the  court  will  not  so  encourage  an  action  as  to  give  a  remedy. 
Nor  is  it  any  answer,  that  the  defendant  knew  of  this  illegality,  for  this  answer 
would  serve  in  all  these  cases."  "  The  plaintiff  must  recover  upon  his  own  merits; 
and  if  he  has  none,  or  if  he  discloses  a  cnae  founded  upon  illegal  deaUng,  and  found- 
ed on  an  intercourse  prohibited  by  law,  he  ought  not  to  be  heard,  whatever  the  de- 
merits of  the  defendant  may  be.  There  is,  to  my  mind,  something  monstrous  in 
the  proposition,  that  a  court  of  law  ought  to  carry  into  etfect  a  contract  founded 
upon  a  breach  of  law.  It  is  encouraging  disobedience,  and  giving  to  disloyalty  its 
unhallowed,  fruits.' ' 

If  the  contract  "arise  from  a  transgression  of  a  positive  law  of  the  country,"  or 
if  it  relates  "<o  an  illicit  subject,"  to  allow  a  recovery  would  be  "encouraging  disobe- 
dience" and  giving  it  "its  unhallowed  fruits."  And  in  these  two  cases  there  was  no 
doubt  of  the  sanction  of  the  contracts  by  the  king  in  council,  in  the  one  case,  and  the 
executive  department  of  the  government  of  the  Union  in  the  other  ;  but  all  this,  nor 
"any  misapprehension  of  the  fact  or  law"  could  avail  to  maintain  the  contract. 

In  the  case  of  the  Bank  of  the  U.  States  v.  Owens,  2  Peters,  527,  it  was  decided 
by  this  court,  that  as  the  bank  charter  "forbids  the  taking  a  greater  interest  than 
6  per  cent.,"  but  does  not  declare  the  contract  void;  "such  a  contract  is  void  upon 
general  principles;"  and  there  could  be  no  recovery,  not  merely  of  the  usurious  ex- 
cess of  interest,  or  of  six  per  cent.  intere.3t,  but  also  no  recovery  of  any  part  of  the 
principal  of  the  money  loaned.  In  this  case  most  of  the  authorities  as  to  illegal  con- 
tracts are  reviewed  by  the  court,  and  they  settle  the  principle^  that  when  the  con- 
struction of  a  statute  regards  the  policy  of  the  law  as  to  the  validity  of  cimtracts, 
the  statute  is  to  receive  a  liberal  construction  so  as  to  uphold  the  policy  of  the  law; 
and  that  reserving  interest  beyond  six  per  cent,  may  be  considered  as  embraced 
within  the  spirit  of  a  law  rendering  it  illegal  "to  take  more  than  six  per  cent,  in- 
terest." They  say  "courts  are  instituted  to  carry  int"  effect  the  law  of  a  country, 
how,  then,  can  they  become  auxiliary  to  the  consummation  of  violations  of  laic." 
Is  not  this  sale  by  the  importer  oT  the  slave  that  he  could  not  introduce  for  sale,  a 
"consummation  of  the  violation  of  the  law.'"  They  thus  recognise  the  great  case 
of  Aubert  and  Maze,  exploding  the  distinction  between  malum  prohibitum  and 
malum  in  se.  "  In  the  case  of  Aubert  v.  Maze,  it  is  expressly  affirmed,  that  there 
is  no  distinction,  as  to  vitiating  the  contract,  between  malum  in  se  and  malum  pro- 
hibitum. And  that  case  is  a  strong  one  to  this  point,  since  the  contract  there 
arose  roi?fflfmi//(/ out  of  transactions  prohibited  by  statute."  "And  so  in  another 
case  of  great  hardships,  3  B.  and  P.  35,  where  the  insurance  was  upon  a  tradino- 
in  the  East  Indies  prohibited  by  an  obsolete  statute,  the  plaintiff  could  not  even  re- 
cover his  premium,  although  admitted  that  the  risk  nerer  commenced,  because  the 
policy  was  void  in  its  inception  on  the  ground  of  illegality,"  and  the  court  say, 


XXXVill 


Groves  et  ah  v.  Slaughtef* 


tlie  principle  extends  to  any  other  contract  where  the  prohibition  arises  by  the  com* 
nion  statute  or  maritime  law;  and  they  add,  "nor  is  the  rule  applicable  only  to  con- 
tracts expressly  forbidden,  for  it  is  extended  to  such  as  are  calculated  to  affect  the 
generat  interest  and  jjolicy  of  the  country."     See  also  1  Peters,  37,  4  lb.  184. 

In  Thomscm  v.  Thomson,  7  Vesey,  470,  473,  it  was  held,  that  "a  contract  for 
the  sale  of  tiie  command  of  an  East  India  ship  is  illegal,  and  therefore  cannot  be 
enforced  by  suit  upon  the  equity,  against  the  fund  paid  by  the  company  as  a  com- 
pensation, under  the  regulation  of  1796,  io  restrain  the  practice  in  future."  The 
court  said,  "the  defence  is  very  dishonest;  but  in  all  illegal  contiacts  it  is  against 
good  faith,  as  between  the  individuals,  to  lake  advantage  of  that,  ^  man  procures 
smuggled  goods  and  keeps  them, and  refuses  to  pay  for  thcvi;  so  in  the  underwriters' 
case,  an  insurance  contrary  to  Act  of  Parliament,  the  brokers  had  received  the 
money  and  refused  to  pay  it  over,  and  it  could  not  be  recovered."  Here  the  ille- 
gality of  a  sale  oi  smuggled  g.iods  retained  by  the  vendee  is  recognised.  In  Amay 
V.  IMery  weather,  4  Dow.  «&  Ry.  86;  2  B.  and  Cres.  573,  it  was  ruled,  that  where 
W.  as  agent  for  defendant,  voluntarily  paid  £500  to  compound  differences,  that  to 
secure  to  VV.  repayment  of  that  sum,  defendant  gave  his  note  to  W.,  which  W.  en- 
dorsed to  plaintiff  after  due,  that  on  threat  of  suit  by  the  plaintiff,  defendant  gave 
his  bond  in  lieu  of  the  note  to  plaintiff;  held  there  could  be  no  recovery  on  the 
bond,  as  it  grew  out  of  an  illegal  transaction.  Here  the  doctrine  of  Faikney  v. 
Ileynous  is  overruled  in  form  and  substance,  this  being  the  case  of  a  bond  given  to 
an  innocent  person  wholly  unconnected  with  the  original  transaction.  It  was  de- 
cided, in  the  St.  lago  de  Cuba,  9  Wheat.  409,  that  no  wages  could  be  recovered 
by  seamen,  nor  money  for  supplies  by  material  men,  when  they  knew  that  the  voy- 
age of  the  ship  was  unlawful.  And  the  principle  was  extended  in  the  ease  of  a 
vessel  engaged  in  the  slave  trade,  to  sujjplies  furnished  after  lier  return  lo  Balti- 
more, by  those  who  knew  of  the  illegal  voyage,  and  that  she  was  remaining  in  port 
under  false  colours. 

We  have  then  numerous  cases  here  cited,  declaring  the  distinction  between 
malum  in  se  and  malum  prohibitum,  e.\ploded;  and  such  also  is  the  opinion  of  all 
the  elementary  writers.  1  Leigh's  Nisi  Prius,  6,  7;  Collyer  on  Partnerships,  28  ; 
Ciiitty  on  Contracts,  231 ;  Paley  on  Agency,  ch.  2,  sec.  2,  p.  103,  104  ;  1  Kaimes, 
3.33:  and  Chancellor  Kent  says:  "The  distinction  between  statutory  offences 
wliich  are  vuila  prohihita  only,  or  mala  in  se,  is  now  exploded,  and  a  breach  of  the 
statute  law  in  either  case,  is  equally  unlawful  and  equally  a  breach  of  duty."  1 
Kent's  Com.  467,  468.  See  7  Wendall,  276,  280.  Mathers  Case,  3  Vesey,  372, 
has  been  before  quoted,  in  which  this  distinction  was  denounced,  and  the  cases  of 
Faikney  and  of  Petrie  overruled  ;  and  subsequently,  in  the  case  ex  parte  Daniels, 
14  Vesey,  192,  Lord  Chancellor  Eldon  "  expressed  his  disapprobation  of  the  doc- 
trine of  Faikney  v.  Reynous.  and  Petrie  v.  Hannay."  Such  is  the  law  of  the  con- 
tinent of  Europe,  of  Scotland  ,  of  England,  and  of  America,  on  this  subject,  and  the 
decisions  in  Ireland  are  to  the  «anie  effect.  In  OtLky  v.  Brown,  1  Bal.  and  Beatty, 
360,  the  chancellor  decided  that  a  "  bill  by  a  banker  for  an  account  of  shares  held  in 
trust  for  him  in  a  mercantile  establishment"  could  not  be  maintained,  because  the 
statute  29  Geo.  3d,  c.  16,  "prohibited  bankers  from  being  traders,"  though  the 
statute  does  not  avoid  the  contract,  nor  does  it  extend  in  terms  to  a  trust ;  yet  a 
recovery  was  refused,  because  to  permit  it  would  be  against  the  policy  of  the  law. 
In  referring  to  the  case  of  Petrie  v.  Hann8.y,  he  expressed  his  concurrence  in  the 
views  of  Lord  Kenyon  in  that  case  and  against  the  case  itself;  and  also  declared  the 
strongest  disa|)probation  of  the  case  of  Faikney  v.  Reynous,  remarking  that  "  Lord 
Kenyon,  Lord  Roslyn  and  Lord  Ellenl)orough,  all  differ  from  Lord  Mansfield,  and 
I  am  quite  satisfied  with  the  principles  laid  down  in  ex  parte  Mather."  To  these 
he  might  have  added  Lord  Loughborough,  Lord  Eldon,  Chief  Justice  Eyre  and 
many  other  distinguished  British  judges  before  quoted  by  me,  as  overruling  these 
cases  and  disapproving  the  distinction  between  malum  prohibitum  and  malum  in 
se.  In  this  case  of  Ottley  v.  Brown,  the  chancellor  expressly  declared  that 
whether  the  illegal  contract  was  the  original  transaction,  or  only  collateral  and  re- 
sulting from  it,  was  equally  void  "on  principles  of  policy."  And  in  Knowles  v. 
Haujjhton,  11  Vesey,  IC8,  the  court  refused  proof  of  any  items  in  an  account  grow- 


AL 


Groves  et  ah  v. 


Slaughter. 


XX.XIX 


t 


lf 


-•      f 


ing  out  of  an  illegal  partnership,  and  overruled  Watts  v.  Brooks ;  and  in  R.Uh  v. 
Jackson,  6  Vesey,  30,  33,  even  when  no  guilt  attached  to  plaintiff  or  defendant, 
the  Court  declared  tiiat  no  contract  could  be  enforced  contrary  to  "considerations 
of  general  policy."  The  distinction  l)etvveen  malum  prohibitum  and  malum  in  se, 
is  denounced  by  Enierigon,  vol.  1,  pages  210,  542,  sec.  5  and  31.  He  says  this 
doctrine  of  distinguishing  between  breaches  of  tiie  law  "  is  reproved  by  St.  Paul 
in  his  Epistle  to  the  Romans.  It.  is  ncce.ssary,  says  the  Apostle,  to  obey  the  laws;  not 
tnrrcbj  throu<rk  fear  of  punishment,  hut  also  as  a  duty  of  conscience.  A  christian  obeys 
the  laws  from  a  conscientious  obligation  and  as  an  indispensable  duty  of  religion." 
And  as  concurring  with  him  he  cites  Pothier,  Denisart,  Burlamaqui,  Wolffs,  Vattell, 
Grotius,  Guidon  do  la  Mer;  and  Deuisart  denounces  the  introduction  of  articles 
into  a  country  against  its  laws  as  a  crime.  Tom.  1,  page  714.  If  it  be  then  a 
crime  as  now  recognised  in  England,  and  Ireland,  and  Scotland,  and  upon  the 
continent  of  Europe,  to  introduce  prohibited  articles  into  a  country,  v/ho  can  con- 
tend that  the  guilty  criminal  shall  obtain  for  hia  offence  the  sanction  and  en- 
couragement of  courts  of  justice,  by  enabling  him  through  its  decrees,  to  sell  the 
very  article  it  is  a  crime  for  him  to  introduce  for  sale? 

Our  opponents  have  cited  the  following  sentence  from  Chitty  on  Contracts,  217: 
"  A  doubtful  matter  of  public  policy  is  not  sufficient  to  invalidate  a  contract.  An 
agreement  is  not  void  on  this  ground,  unless  it  cr,/>rcssi»/ and  unquestionably  contra- 
vene public  policy  and  be  injurious  beyond  all  doubt  to  the  interests  of  the  state." 
Now  Mr.  Chitty  was  here  speaking,  as  the  very  preceding  sentence  shows,  "  of  con- 
tracts void  at  common  lata  as  affecting  public  policy,"  and  not  of  contracts  repug- 
nant to  the  policy  of  a  statutory  or  constitutional  provision.  We  have  seen  in  tiie 
numerous  cases  already  cited,  where  the  question  is  whether  a  contract  is  repug- 
nant to  the  policy  of  the  statute,  that  so  far  from  the  rule  being  that  the  agree- 
ment must  expressly  contravene  the  statute,  it  must  receive  the  most  liberal  con- 
struction to  prevent  a  defeat  of  the  policy  of  the  statute,  and  that  if  it  be  within 
the  spirit  or  scope,  intention  or  object  of  the  law,  by  implication  or  otherwise,  tlip 
agreement  is  void.  Did  Mr.  Chitty  also  mean  to  say  that  thj  contract  must  be 
"injurious  beyond  all  doubt  to  the  interests  of  the  state,"  in  order  to  declare  it  void, 
when  the  question  arose  u|i'in  a  statute  .'  Why,  if  the  statute  by  any  fair  and  just 
construction  avoided  the  contract,  we  have  seen  the  courts  in  repeated  instances, 
some  of  which  have  been  cited,  declare  the  contract  invalid  as  contrary  to  the  poli- 
cy of  a  statute,  whilst  at  the  same  time  they  announced  their  disapprobation  of  tiie 
policy  of  the  statutes,  and  declared  that  in  their  judgments  the  contract  was  not 
injurious  to  the  interests  of  the  state.  It  is  then  when  in  the  absence  of  a  statute  or 
constitutional  pro  vision,  a  court,  ?/:/;o«  its  own  judgment, is  refusing  its  aid  to  a  contract 
upii..  the  ground  that  it  is  against  the  public  policy,  and  injurious  to  the  interest  of 
the  state,  that  it  must  be  a  clear  case,  and  not  "  a  doubtful  matter  of  public  policy." 
That  such  was  Mr.  Chitty 's  meaning,  is  evident  from  the  fact  that  in  this  chapter, 
which  is  headed  "  of  contracts  void  at  common  law,  as  affecting  public  policy," 
he  enumerates  only  cases  void  at  common  lata  as  injurious  to  the  public  interest, 
aid  not  cases  depending  upon  the  construction  of  a  stattite;  and  then  in  a  separate 
chapter  he  speaks  "  of  contracts  void  by  statute,"  and  enumerates  many  instances 
under  which  contracts  not  within  the  words  of  the  statute,  are  declared  void,  as 
repugnant  to  its  intention,  scope  and  spirit.  In  his  notes  to  this  chapter  he  refers 
to  a  tJeatise  on  the  same  subject,  in  the  third  volume  of  his  commercial  law,  page 
83,  from  wiiich  I  quote:  ''But  a  distinction  has  been  introduced  into  our  law 
books,  under  the  two  several  denominatiouh  oi mala  prohihita  and  mala  inse."  He 
denies  and  denounces  this  distinction  ;  and  then  says,  where  "  an  act  is  prohibited 
generally  by  statute,  the  punishment  which  the  law  annexes  to  the  offence  is  in 
general  by  indictment,  and  this  is  that  species  of  crime  which  our  law  writers 
usually  understand  by  the  term  malum  inse."  "And  the  circumstance  of  both 
parties  being  ignorant  of  the  law,  and  being  innocent  of  any  intention  to  violate, 
will  not  constitute  any  distinction."  "  And  the  illegality  affects  all  contracts  cal- 
culated to  violate  the  law  ;  and  therefore,  where  a  voyage  has  been  declared  illegal, 
a  ;  drson  cannot  be  sued  for  cirelessly  stowing  goods  to  proceed  upon  it."  The 
authority  then  of  Chitty  is  in  our  favour  on  all  the  contested  points.     Here  Mr. 


xl 


Groves  et  ah  v.  Slaughter. 


I 


P 


Cliitty  says,  when  the  introduction  of  slaves  for  sale,  (to  specify  the  case)  is  "  pro- 
hibited generally  by  a  statute,"  and  not  the  implied  prohibition  by  a  penalty,  "  this 
is  liiat  species  of  criaik  which  our  law  writers  usually  understand  by  the  term 
ntiilnm  in  sc."  The  words  here  then  are  "  the  introduction  of  slaves  as  merchan- 
dise or  for  sale  shall  be  prohibited  from  and  alter  tlie  first  day  of  May,  1833."  The 
prohibition  then  being  general  after  the  day  fixed,  and  without  a  penalty,  the  intro- 
duction ol'  the  slaves  in  this  case  for  sale  was  a  crime,  it  was  mabivi  in  sc,  it  was 
punishable  by  indictment,  with  fine  and  imprisonuient;  and  all  the  argument  that 
has  been  made  to  show  that  this  is  not  a  prohibition,  but  merely  directory  to  the 
legislature,  because  there  is  no  penalty,  falls  to  the  ground.  And  now  then  I  approach 
the  grave  subject  really  referred  to  in  the  quotation  made  by  our  opponents  from 
Chitty,  and  tliat  is,  wliether  the  introduction  of  these  slaves  for  sale,  and  the  sub- 
^!equeIlt  sale,  would  be  fo  clenrly  repugnant  to  the  true  policy  of  the  state,  and  so 
injurious  to  its  interests,  that  such  a  contract  of  sale  would  be  void  on  general 
principles,  had  tjiere  been  no  provision  on  the  subject  in  the  constitution  or  statutes 
of  Mississippi.  The  power  and  duty  of  the  coun  to  declare  such  contracts  void  in 
clear  cases  of  repugnance  to  the  policy  or  interest  of  a  state,  even  where  there  is 
no  statutory  or  constitutional  enactment,  is  admitted  in  the  clause  quoted  by  our 
opponents  from  Chitty;  and  upon  reading  that  chapter,  numerous  instances  of  the 
a|)plication  of  the  principle  will  be  found,  in  cases  less  clear  in  my  judgment  than 
the  present,  and  to  these  cases  I  refer  the  court. 

The  same  doctrine  iti  thus  laid  down  by  Lord  Mansfield,  in  Ist  Cowper,  39:  "It 
is  admitted  by  the  counsel  for  the  defendant,  that  the  contract  is  against  no  posi- 
tive law.  It  is  admitted,  too,  that  there  is  no  case  to  be  found  wiiich  says  it  is  il- 
legal :  but  it  is  argued,  and  rightlj-,  that  notwitlistanding  it  is  not  prohibited  by  any 
positive  law,  nor  adjudged  illegal  by  any  precedents,  yet  it  may  be  decided  to  be 
so  upon  principles;  and  the  law  of  England  would  be  a  strange  science  indeed,  if 
it  were  decided  upon  precedents  only.  Precedents  serve  to  illustrate  principles, 
and  to  give  them  a  fixed  certainty.  liut  the  law  of  England,  which  is  exclusive 
of  positive  law,  enacted  by  statute,  depends  upon  principles;  and  these  principles 
run  through  all  the  cases,  according  as  the  (larticular  circumstances  of  each  have 
been  found  to  fall  within  the  one  or  other  of  them.  The  question  then  is,  whether 
this  wager  is  against  principles?  If  it  be  contrary  to  any,  it  must  be  contrary 
either  to  principles  of  wora/i7i/;  for  the  law  of  England  prohibits  every  thing  which 
is  contra  bonos  mores;  or  it  must  be  against  principles  of  sound  policy;  for  many 
contracts  which  are  not  against  vioralilij,  are  still  void  as  being  against  the  maxims 
of  sound  policy."  This  doctrine  has  been  repeatedly  recognised  as  the  law  in 
England  and  America,  and  this  vtr"  principle  is  (jvotcd  and  recognised  by  the  su- 
preme court  of  New  Jersey  in  5th  ilalsted,  91,  and  by  the  supreme  court  of  Penn- 
sylvania in  Ist  Binney,  123;  and  in  the  concluding  opinion  in  that  case,  as  to  a 
sale  of  lands,  the  court  say — "  Exercisinnr  jurisdiction,  the  state  is  bound  to  pre- 
serve the  peace  and  aid  contracts,  but  not  such  ts  militate  against  her  own  rights. 
It  would  be  unnatural  and  against  reason,  which  is  a  giound  of  the  common  law. 
It  is  against  public  policy.  Self-preservation  forbids  it.  So  that,  mdependent.  of 
anij  act  vf  the  legislature,  I  must  h'dd  the  transfer  illegal,  and  the  obligation,  given 
under  such  consideration,  void."  Does  it  then  in  this  case,  independently  of  any 
constitutional  or  statutory  enactment,  clearly  appear  to  the  court,  that  at  the  date 
of  this  contract,  the  introduction  and  sale  of  slaves,  as  nierchandiire,  was  against 
the  true  policy,  was  dangerous  to  "  the  peace"  of  the  state,  or  "injurmus  to  its  in- 
terests," it  v/as  the  duty  of  the  court  not  to  maintain  the  action  on  the  contract. 
No  court  is  called  upon  to  lend  its  assistance  to  contracts  encouraging  a  traffic  de- 
trimental to  the  interests,  or  repugnant  to  the  policy,  or  dangerous  to  the  peace  of 
the  state.  It  is  true  that  this  is  a  power  of  judicial  tribunals,  where  they  act  merel}' 
on  general  principles  without  precedents,  which  nnist  be  exercised  only  in  clear 
cases;  but  where  the  case  is  clear,  it  is  a  great  protective  and  conservative  power, 
which  no  court  can  refuse  to  exercise,  without  a  gross  dereliction  of  duty.  Is  this 
a  clear  case? 

The  views  of  our  highest  court,  of  the  dreadful  consequences  of  this  traffic,  have 
been  already  quoted ;  and  if  they  are  correct,  as  no  reasonable  man  can  doubt,  then 


Groves  et  al.  t. 


Slaughter 


xli 


is  tliere  not  strong  ground  upon  wliicli  to  contend  that  this  contract  was  void  on 
general  principles,  in  the  absence  of  all  provisions  in  the  constitution  or  statutes  uf 
the  state?  But  suppose  it  not  to  be,  merely  on  general  principles,  a  case  suffi- 
ciently clear  for  the  court  to  refuse  its  aid  by  enforcing  the  contract,  who  can  doubt 
wliat  was  their  duty,  when  there  was  a  constitutional  mandate  on  the  subject,  sup- 
posing it  only  to  be  a  command  of  the  constitution,  that  on  the  1st  of  May,  ]8o3. 
tlie  traffic  shall  be  prohibited,  was  it  not  the  declared  policy  of  the  state  that  the 
traffic  should  cease  on  that  day ;  was  it  not  the  will  of  the  convention,  as  announced 
in  the  fundamental  law,  that  it  should  then  cease ;  and  was  the  court,  in  defiance 
of  this  !innnnciation,  in  defiance  of  the  mandate  of  the  convention,  in  defiance  of 
the  will  of  the  people  declared  in  convention,  and  again  at  the  polls  in  1833,  bj* 
refusing  to  change  this  mandate  into  a  grant  of  discretionary  power  to  the  legisla- 
ture, to  maintain  contracts  repugnant  to  that  policy,  because  the  legislature  had 
not  acted  on  the  subject?  We  have  seen  that,  in  clear  cases,  it  is  the  duty  of  a 
court  to  refuse  its  aid  to  contracts  repugnant  to  the  policy  or  interest  of  the  state, 
or  dangerous  to  its  peace  even  in  the  absence  of  all  legislative  or  constitutional 
prohibitions;  but  where  there  is  a  mandate  of  the  constitution  on  the  subject  an- 
nouncing the  will,  or,  if  you  please,  merely  the  opinion  of  the  people  of  the  state, 
that  the  traffic  shall  be  prohibited  on  a  day  certain,  must  not  all  doubt  cease,  and 
tlie  duty  of  the  court  become  clear  and  obvious  ? 

But,  if  this  clause  of  the  constitution  does  not  of  itself  render  the  sale  unlawful, 
it  is  insisted  that  it  does  so  when  taken  in  connection  with  the  preceding  act  of 
the  legislature,  of  the  ISth  June,  1822,  Rev.  Code,  369.  It  is  declared  by  the  1st 
section  of  that  act,  "That  all  persons  lawfully  held  to  service  for  life,  and  the 
descendants  of  the  females  of  them,  within  this  state,  and  such  persons  and  their 
descendants,  as  hereafter  may  be  brought  into  this  state,  pursuant  to  law,  being 
held  to  service  for  life,  by  the  laws  of  the  state  or  territory  from  whence  they 
were  removed,  and  no  other  person  or  persons  whatever,  shall  henceforth  be 
deemed  slaves." 

Now,  if  this  clause  of  the  constitution  prohibits  the  introduction  for  sale,  would 
these  slaves  have  been  introduced  "  pursuant  to  law  ?"  That  will  not  be  contend- 
ed. Then  this  section  declares  that  they  shall  not  "  be  deemed  slaves  ;"  that  is. 
they  shall  not  be  deemed  so  in  Mississippi  for  the  purpose  of  lawful  sale  there  by 
the  importer,  because  the  subsequent  sections  of  this  act  explain  its  meaning,  by 
imposing  a  penalty  on  the  sale  or  purchase  of  all  slaves  not  imported  pursuant  tr> 
law ;  and  it  will  not  be  denied,  that  a  penalty  on  the  sale  implies  a  prohibition  of 
ihe  sale,  and  renders  that  sale  unlawful.  Dwaris  on  Stat.  678  ;  Carth.  251  ;  1  Bin 
lis  ;  3  Chit.  C.  L.  84.  For  the  purposes  then  of  a  lawful  sale  by  the  importer, 
negroes  not  "  brought  into  the  state  pursuant  to  law"  cannot  "  be  deemed  slaves." 
and  if  so,  the  sale  must  be  unlawful.  What  then,  it  is  asked,  becomes  of  these 
slaves  ?  In  reply,  I  answer,  what  became  of  the  slaves  introduced  against  the  pro- 
visions of  the  act  of  1808  or  1822,  and  what  becomes  of  the  slaves  unlawfully  in- 
troduced since  the  act  of  1837  ?  In  all  these  cases  it  is  conceded  that  the  sale  is 
invalid  by  the  importer,  although  no  further  provision  is  made  in  any  of  these  cases 
in  regard  to  the  future  condition  of  the  slaves.  In  all  these  cases,  however,  as  in 
this,  the  sale  by  the  importer  was  invalid,  and  for  that  purpose  they  could  not  "  be 
deemed  slaves."  So  in  the  numerous  cases  cited  in  this  argument,  the  land  in 
Pennsylvania,  the  ginger  sold  to  make  beer,  the  butter,  corn,  and  coal  vended  by 
unlawful  measures,  the  ribbands  bought  as  presents  for  voters,  the  vessels  trans- 
ferred contrary  to  the  policy  of  the  navigation  or  registry  laws,  the  horses  pur- 
chased on  Sunday  ;  in  all  these  cases  the  property  remained  property,  and  a  sub- 
ject of  lawful  traffic,  but  the  sale  hij  the  rlulator  of  the  law  was  held  invalid.  Now, 
this  first  section  of  the  act  of  1822,  was  in  full  force  iX  the  date  of  the  framing  of 
the  constitution  of  1832,  and  the  4th  section  of  the  schedule  of  that  instrument 
declares,  "All  laws  now  in  force  in  this  state,  not  repugnant  to  this  constitution, 
shall  continue  to  operate  until  they  shall  expire  by  their  own  limitation,  or  be 
altered  or  repealed  by  the  legislature."  Now  this  constitution  prohibits  the  intro- 
duction of  slaves  as  merchandise  or  for  sale,  and  this  section  of  the  act  of  1822. 
declares,  that  such  slaves  as  shall  be  unlawfully  introduced  hereafler,  shall  not  "  be 
1)2 


xlii 


Groves  et  al.  v.  Slaughter. 


deemed  slaves,"  for  the  purpose  of  a  lawful  sale  by  the  importer.  There  is  no  re- 
pugnance whatever  in  the  law  to  this  constitutional  proiiibition  ;  on  the  contrary,  it 
is,  if  not  clearly  implied  in  the  prohibition  itself,  certainly  not  repugnant  to  it,  and 
conformable  lO  its  expressed  object.  This  section  then,  of  that  act,  so  far  from 
being  repealed,  was  re-enacted  and  continued  in  operation  by  the  4th  section  of 
the  schedule  of  the  constitution  of  1832,  and  must  be  construed  in  conjunction 
with  that  instrument.  This  section  then,  of  the  act,  must  be  regarded  as  within 
the  view  of  the  frainers  of  the  constitution  of  1832  ;  for  it  was  then  continued  in 
operation  by  them;  and  that  section  having  rendered  illegal  the  sale  by  the  importer 
of  all  slaves  that  should  thereafter  be  unlawfully  introduced,  rendered  it  unneces- 
sary for  the  convention  to  declare  the  sale  illegal.  This  also  is  a  strong  argument 
to  show  that  this  clause  of  the  constitution  was  a  prohibition,  when  we  see  that 
this  section  of  the  act  of  1822,  was  thus,  by  that  instrument,  connected  with,  and 
made  a  part,  and  continued  in  operation  thereby  :  und,  even  if  this  were  regarded  as 
a  new  and  distinct  prohibition  from  that  of  the  acts  of  1808  and  1822,  but  only  so 
far  differing  as  this,  that  by  these  laws  the  proiiibition  of  this  traffic  was  special  and 
partial,  and  here  it  was  general  and  total,  would  it  not  be  a  most  e.xtraordinary 
construction  to  suppose,  that  whilst  the  convention  si'bstituted  a  total  for  a  partial 
prohibition,  it  should  intend  to  depart  from  the  policy  of  a  quarter  of  a  century,  by 
which,  under  the  acts  of  1808  and  1822,  wherever  the  impurtatiun  was  illegal,  the 
sale  also  by  the  importer  was  void  .■" 

Perceiving  the  force  of  these  arguments,  our  opponents  meet  them  by  asking, 
would  you  emancipate  all  these  slaves  introduced  from  1833  until  1837 .'  Were 
they  emancipated  under  the  act  of  1808,  of  1822,  and  of  1837,  when  unlawfully 
imported  .''  and  if  not,  the  question  presents  no  difliculty.  Under  the  early  acts  of 
congress  prohibiting  the  introduction  of  slaves  from  Africa,  they  were  not  emanci- 
pated ;  yet  the  sale  by  the  importer  was  absolutely  void.  Laws  in  pari  materia  are 
to  be  construed  together,  and  as  one  code;  and  when  a  code  of  laws  has  been  com- 
piled by  the  legislature,  and  by  an  amendment  of  the  constitution,  that  instrument, 
whilst  it  expressly  continues  in  force  every  jjortion  of  that  law  not  repugnant  to  the 
constitution,  introduces  any  new  provision  or  modification  of  the  pre-existing  sys- 
tem, the  who'.e  is  to  be  con.strued  together ;  and  the  new  provision  or  modification 
is  to  be  regarded  as  incorporated  in  the  former  system,  as  constituting  a  part  of  it, 
and  as  substituted  for  any  particular  section  of  that  system  to  which  the  new  pro- 
vision may  be  repugnant,  or  in  which  it  may  affect  a  change.  Now,  tiiis  act  of 
1822  before  cited,  was  a  complete  code  of  laws  in  regard  to  slaves,  consisting  of 
eighty-six  sections,  nearly  every  one  of  which  is  now  in  undisputed  operation. 
Every  section  of  that  law  which  is  repugnant  to  the  constitution  of  1832,  is  there- 
by repealed,  and  the  new  provision  substituted  in  place  of  the  repealed  clauses  as  a 
part  of  the  system.  The  doctrine  is  thus  laid  down  in  Dwaris,  699-700,  and  is 
sustained  by  numerous  authorities.  "  As  one  part  of  a  statute  is  properly  called  in, 
to  help  the  construction  of  another  part,  an<l  is  fitly  so  expounded  as  lo  support  and 
give  effect,  if  possible,  to  the  uhole,  so  is  the  comparison  of  one  law  with  otiier  laws 
made  by  the  same  legislature,  or  upon  the  same  subject,  or  relating  expressly  to  the 
same  point,  enjoined  for  the  same  reason,  and  attended  with  a  like  advantage.  In 
applying  the  maxims  of  interpretation,  the  object  is  throughout,  first,  to  ascertain, 
and  next  to  carry  into  effect,  the  intentions  of  the  framer.  It  is  to  be  inferred,  that 
a  code  of  statutes  relating  to  one  subject  was  governed  by  one  spirit  and  policy,  and 
was  intended  to  be  consistent  and  harmoniovs  in  its  severol  parts  and  provisions 
It  is  therefore  an  established  rule  of  law,  that  all  acts  in  pari  materia  are  to  be  taken 
together,  as  if  they  were  owe  law;  and  they  are  directed  to  be  compared  in  the  con- 
struction of  statutes,  because  they  are  considered  as  framed  upon  one  system,  and 
having  one  object  in  view.  If  one  statute  prohibit  the  doing  of  u  thing,  and  another 
statute  be  afterwards  made,  whereby  a  forfeiture  is  inflicted  upon  the  person  doing 
that  thing,  both  are  considered  as  one  statute.  When  an  action  founded  upon  one 
statute,  is  given  by  a  subsequent  statute  in  a  new  case,  every  thing  annexed  to  the 
action  by  the  first  statute  is  likewise  given.  Indeed,  the  i.attek  act  may  be  con- 
sidered as  incorporated  with  the  former." 

Here,  it  is  expressly  declared  that  the  latter  provision  is  considered  as  "  incor- 


5 
.    -1 


II 


Groves  et  al.  v.  Slaughter. 


xliii 


ere  ia  no  re- 

!  contrary,  it 
mt  to  it,  and 
so  fur  from 
h  section  of 
conjunction 
id  as  within 
ontinued  in 
lie  importer 
it  unneces- 
?  argument 
ve  s«e  that 
i  with,  and 
regarded  as 
but  only  so 
special  and 
raordinary 
ir  a  partial 
entury,  by 
llegal,  the 

by  asking, 
7  ?  Were 
inlawfully 
rly  acts  of 
>l  emanci- 
lateria  are 
Jeen  com- 
strument, 
ant  to  the 
sting  sys- 

ification 
art  of  it, 
new  pro- 
is  act  of 
listing  of 
aeration. 
is  there- 
ises  as  a 
>,  and  is 
ailed  in, 
port  and 
ler  laws 
y  to  the 
?e.     In 
certain, 
ed,  that 
cy,  and 
I'isionM. 
i  taken 
le  con- 
m,  and 
nother 

doing 
on  one 

to  the 
e  con- 

incor- 


y| 


M 


1 


I 


porated  with  the  former."  Now,  in  place  of  the  2d,  4th,  and  5th  sections  of  this 
act  of  1822,  read,  us  a  part  of  that  act,  the  provision  of  the  conMlilulion  of  1832, 
duclaring  that,  "  tiie  introduction  of  slaves  as  merchanditie  or  for  sale,  sliall  be  pro- 
hibited I'riiin  and  after  the  1st  of  May,  1833."  And  then,  by  the  1st  section  of  the 
act,  no  such  ncgrnes  thus  introducetl  sliall,  for  the  ()urposes  of  lawf.il  sale,  b^'  the 
importer,  be  "  diuMiiiHi  slaves,"  and  tiiis  ia  enouf^h  to  decide  fliis;  (|uestion.  But 
tills  is  not  all,  fur  1  contend,  that  as  this  provision  was  thus  incorporated  by  the 
new  constitution,  in  place  of  sections  2,  4  and  o,  aa  part  of  the  act  of  1822,  the 
other  provisions  remaining  in  force,  then  the  penalties  attaching  ujion  the  sale  of 
slaves  ini|)urted  as  merchandise,  contrary  to  the  provisions  of  the  law  under  the  6th 
sestion  of  tlie  act  of  1822  would  apply.  That  section  was  not  repugnant  to  the 
clause  in  question  of  the  constitution,  but  remained  in  force,  and  in  aid  thereof, 
until  the  legislature  attached  other  penalties.  This  we  have  seen  is  the  principle 
cited,  that  all  acts  in  pari  inulrria  are  to  be  taken  together,  "  «s  //  titcij  were  one 
laio.''  Thus,  "if  one  statute  prohibits  the  doing  a  thing,  and  another  statute  be 
afterwnrd.s  made,  whereby  a  forfeiture  is  inflicted  on  the  person  doing  that  thing, 
both  are  considered  as  one  statute."  Thus,  a  new  forfeiture  attachi-  to  an  old  pro- 
hibition as  part  of  it ;  so  "  when  an  action  fuundrd  vpon  one  stututr,  is  given  by  a 
subsequent  statute  in  a  new  case,  every  thing  annexed  to  the  action  by  the  first 
Htatute  is  likewise  given.  Indeed,  the  latter  act  may  be  considered  as  incorporated 
leitli  the  former." 

Here,  then,  was  a  penalty  on  the  sale  of  slaves  unlawfully  introduced  as  mer- 
chandise ;  a  subsequent  act  of  sovereign  legislation  extends  this  provision  by  for- 
bidding the  introduction  of  all  slaves  as  merchandise;  does  not  the  penalty  under 
the  old  law  clearly  attach  under  the  nevf  provision,  especially  when  every  thing  not 
repugnant  to  that  provision  in  the  former  law  is  expressly  continued  in  force  by  the 
last  enactment  .•'  If  this  were  a  second  supplemental  act,  there  could  be  no  doubt ; 
and  is  it  not  more  important  to  apply  the  principle  to  modifications  of  the  former 
system  introduced  by  a  prohibitory  provision  of  a  new  constitution  .' 

It  has  been  decided  that  "if  a  statute  prohibit  eontraband  goods  under  a  penalty, 
a  8ubseq\ient  statute  declaring  goods  contraband,  will  draw  the  jjenalty  after  it." 
"  The  statute  of  Anne,  c.  7,  s.  17,  imposing  a  penalty  of  treble  the  value  on  the  im- 
portation of  foreign  goods  prohibited  to  be  imported  into  this  country,  extends  to 
all  such  goods  as  have  been  or  may  be  prohibited  stibsequently  to  that  statute,  as 
much  as  if  they  had  been  prohibited  at  the  time  of  making  thatstatute."  "  Dwaris 
on  Stat.  700,  743,  744;  Atty.  Genl.  v.  Saggers,  1  Price,  182.  Thus,  by  the  8th 
Anne,  c.  7,  certain  penalties  are  imposeti  on  the  importation  of  such  goods  as  were 
prohibited,  foreign  gloves  not  being  among  the  articles  then  prohibited.  The  6th  of 
G.  3,  c.  3,  an  independent,  not  a  supplemental  act,  passed  several  years  subsequent- 
ly, prohibited  the  importation  of  foreign  gloves,  and  inflicted  penalties  on  the  con- 
cealment of  them.  The  slat,  of  Anne  inflictf  d  a  different  penalty  on  persons  know- 
ingly having  possession  of  such  goods  as  were  then  prohibited.  And  the  question 
was,  whether  the  double  penalties  under  both  statutes  could  be  recovered.  The  court 
decided  that  they  could.  They  say,  "  the  two  statutes  may  well  stand  together.  The 
one  requires  merely  a  possession  of  the  goods,  with  a  knowledge  of  their  prohibition; 
the  other,  a  possession  with  intent  to  conceal  from  forfeiture  or  seizure."  And  both 
penalties  were  enforced,  though  these  gloves  were  "not  prohibited  by  the  first  act." 
This  is  a  niueh  stronger  case  than  the  present,  where  only  one  penalty  would 
be  exacted  ;  but  the  principle  applies,  that  where  certain  classes  of  goods  for  slaves) 
are  prohibited  to  be  imi)orted  under  a  penalty,  and  by  subsequent  legislation  the 
prohibition  is  extended  to  another  class  of  goods  (or  slaves),  the  penalty  under  the 
first  act  attaches  to  the  goods  (or  shives)  enumerated  in  the  second,  although  it  be 
not  a  supplemental  act,  and  not  referred  to  in  the  second  act.  And  Lord  Mansfield 
upholds  the  same  piinciple  of  considering  as  one  act,  statutes  in  pari  materia,  al- 
though the  first  act  is  "  not  referred  to"  in  the  last  statute  :  and  in  aid  of  the  con- 
struction of  a  late  statute,  he  declares  it  a  proper  rule  "  to  look  into  the  policy  of  a 
former  act  in  pari  materia,  although  that  act  may  have  expired."  Dwaris,  700,  701 ; 
1  Bur.  449;  Bac.  Ab.  T.  Stat.   1,  3;  1  Vent.  246;  Wallis  v.  Hudson,  Chan.  Rep. 


' 


xliv 


Groves  et  al.  r.  Slaughter. 


276.  And  it  is  even  competent  to  call  in  aid  a  "repealed  Htatute,"  to  assist  in  the 
construction  nt'  another  statute  in  pari  materia. 

Now,  if  under  the  strict  construction  given  to  penal  statutes,  the  penalty  of  the 
first  statute  on  the  iniportation  of  certain  proiiibited  goods,  will  be  inflicted  as  to 
otiier  goods  prohibited  by  a  secoiul  statute,  and  even  double  penalties  will  be  ex- 
acted, can  there  be  a  doubt  that  where  the  same  acts  are  most  liberally  expounded, 
when  the  penalty  is  not  demanded,  but  the  act  is  only  asked  to  operate  so  as  to 
render  the  contract  unlawful,  that  the  1st  section  of  the  act  of  lfi22,  which  had 
that  effect  on  the  sale  of  ail  slaves  that  should  not  "  hereafter  be  brought  into  this 
state  pursuant  to  law,"  must  expressly  apply  to  such  slaves  as  were  prohibited  to 
be  introduced  by  the  constitution.'  And  is  it  not  incredible,  that  when  the  consti- 
tution of  1832  prohibited  the  introduction  of  slaves  as  merchandise,  it  was  intended 
to  change  the  settled  policy  of  the  state  for  a  quarter  of  a  century,  by  which,  under 
all  acts  in  pari  materia,  the  sale  was  uliMiys  made  unlawful  ichencrrr  the  importation 
was  forbidden?  This  act,  then,  of  1822,  is  a  j)art  of  tiiis  provision  of  the  constitution 
of  1832,  expressly  continued  in  force  thereby,  and  demonstrates  that  this  was  a 
prohibition;  for  why,  by  implication,  is  this  clause  to  be  rendered  merely  directory 
for  future  legislation,  when  there  was  already  legislation  full  and  complete  upon 
the  subject,  and  expressly  continued  in  force  by  the  constitution .' 

I  have  before  quoted  the  decision  in  our  favour  of  the  highest  court  of  our  state  ; 
and  here  I  contend,  that  the  decision  of  the  highest  court  of  a  state,  expounding  its 
constitution,  is  obligatory  oti  thi.s  court  in  all  cases  when  that  construction  involves 
no  repugnance  to  the  constitution  of  the  United  States.  Could  congress  give  to 
this  court  an  appeal  from  the  decisions  of  state  tribunals  in  questions  not  involving 
a  repugnance  to  the  constitution  of  the  United  States.^  Surely  not.  And  because 
it  has  jurisdiction,  not  on  account  of  the  question,  but  of  the  parties,  between  citi- 
zens of  different  states,  shall  it  therefore  assume  the  power  of  disregarding  the  con- 
struction of  their  own  constitution,  and  of  their  own  statutes  by  the  highest  courts 
of  a  state.''  If  so,  and  it  possesses  this  power  in  ont-  case  and  in  one  state,  it 
possesses  the  same  power  in  every  state  and  in  all  cases,  and  may  overrule  any 
number  of  decisions  upon  all  their  statutes  and  all  their  constitutions  by  all  their 
courts ;  and  thus  establish  two  rules  of  property  under  the  same  state  statute  or 
state  constitution,  and  both  to  be  enforced  within  the  r.tate,  the  one  by  the  state, 
and  the  other  by  the  federal  tribunals.  Let  us  take  the  case  of  Maryland,  and 
suppose,  that  under  their  laws,  their  courts  not  only  invalidate  tlie  esle  of  slaves 
introduced  for  sale,  hut  declare  the  negro  free.  If,  in  a  case  between  citizens  of 
different  stales,  this  court  should  give  a  different  construction  to  the  laws  of  Mary- 
land, and  declare  the  sale  valid,  and  the  negro  a  slave,  what  would  be  the  result.-' 
Why ,  whilst  the  slave  trader  of  another  state,  aided  by  this  court,  should  collect  the 
money  for  the  sale  of  the  slave,  that  same  slave  might  be  declared,  upon  his  peti- 
tion, a  freeman,  by  the  courts  of  Maryland  ;  and  no  one  pretends  that  from  that  de- 
cision there  could  be  any  appeal  to  this  court.  And  to  reverse  the  picture,  whilst 
the  state  courts  held  the  sale  valid  and  the  negro  a  slave,  as  between  their  citizens 
in  expounding  their  laws,  this  court,  in  a  case  in  which  a  citizen  of  another  state 
was  a  party,  might  pronounce  such  sales  invalid  and  the  negro  free,  and  thus  eman- 
cipate the  slaves  of  a  state  against  her  will. 

This  is  but  one  case  out  of  a  thousand,  of  conflicting  decisions  that  would  con- 
stantly occur,  bringing  the  state  courts  and  state  officers  into  constant  conflict; 
often  as  to  the  same  money  or  property,  real  or  personal,  and  yet  neither  bound  to 
acquiesce  in  the  decision  of  the  other,  and  of  course  resulting  in  contests  offeree 
or  anarchy.  Under  our  form  of  government  there  must  be  some  tribunal,  in  the 
last  resort,  to  expound  laws  and  constitutions.  That  tribunal,  in  cases  involving 
the  construction  of  the  constitution  of  the  Union,  is  this  court;  ond  in  all  other 
cases  involving  only  a  construction  of  a  state  constitution,  the  highest  court  of  the 
state  is  the  expounding  power,  to  whose  decisions  all  must  submit,  or  two  opposite 
and  contradictory  constructions  and  rules  of  property  must  prevail  and  be  enforced 
in  the  same  state.  No  powers  are  retained  by  any  state,  if  this  court  in  all  cases, 
though  not  involving  a  construction  of  the  constitution  of  the  Union,  may  demand 
obedience  in  every  state  and  from  all  their  courts,  lo  all  their  decisions  upon  ques- 


Groves  et  al.  v.  Slaughter. 


xlv 


tions  merely  local,  and  embracing  only  an  exposition  of  state  laws  and  state  consti- 
tutions. Over  these  local  queslioiiH,  it  i;  conceded,  that  this  frovrrnmcnt  has  no 
control.  The  coiiHtitiition  itself  declares  that  "  the  powers  not  dele{ruted  to  the 
United  Stales  by  the  constitution,  nor  prohibited  by  it  to  the  state.s,  are  reserved 
to  the  states  reM[)ei',tiveiy ,  or  to  tiie  ])eopie."  These  local  (|ueHt,i')iis  upon  which 
congress  cannot  h-i^islale,  are  conceded  to  be  cases  of  power  res  ,  J  to  tiie  states, 
and  not  delejr.ited  to  the  United  States,  And  yet,  upon  uU  these  local  iiuestions, 
over  which  llie  governments  of  the  stales  have  exclusive  power,  and  this  froccrn- 
inent  has  no  power,  it  may,  upon  this  principle,  nay,  it  must  sweej)  them  all  within 
the  Controlling  sway  of  one  of  the  de|)urtmenls  of  this  government.  Especially 
over  slavery,  or  any  other  local  (piestion,  the  states  would  have  no  power,  and  it 
would  all  be  c(mcentraled  in  one  of  the  de|)artments  of  this  government. 

If,  in  construing  in  the  last  resort,  the  constitution  of  a  slate,  this  tribunal  may 
decide  that  upon  llieir  construction  of  that  instrument,  all  the  slaves  within  the 
limits  of  the  slate  are  Iree  men,  in  vain  nuiy  all  the  state  tribunals  have  decided 
dift'erenlly;  in  vain  may  we  urge,  and  the  opposing  counsel  concede,  that  no  power 
over  the  "  question,"  was  delegated  by  the  constitution  of  the  Union  to  this  govern- 
ment, that  it  is  a  power  admitted  to  bo  exclusively  reserved  to  the  stales  ;  but  if  the 
<]U4;sti(U<  n  rises  on  the  construction  of  a  state  constitution,  in  a  case  between  citi- 
zens of  dilferenl  slates,  r'.iul  comes  into  this  court,  its  construction  of  that  constitu- 
tion, (if  the  state  iuterpretutioa  be  not  binding,)  is  to  be  the  supreme  law  of  the 
land,  and  obligatory  on  the  same  oueslion  on  all  the  stale  tribunals.  There  is  no 
escape  from  these  consequences,  but  in  the  concession,  that  the  state  tribunals  are 
not  bound  by  the  construction  placed  on  local  questions  arising  under  state  laws, 
and  elate  conslilulions.  And  is  there  to  be  no  final  and  peaceful  arbiter  of  any 
such  questions.'  Must  the  conflicting  decisions  of  the  slate  and  federal  courts,  both 
bo  executed  without  the  power  of  ap])eal  from  either  tribunal,  and  I'orce  decide  be- 
tween tile  marshal  on  the  one  hand,  and  the  sheriff  on  the  other,  in  carrying  into 
elFect  these  contradictory  decrees.'  Such  a  system  would  be  the  reign  of  anarchy 
and  civil  war.  Are  we  to  be  told,  change  your  state  constitutions,  and  we  will 
expound  ihein  dilferently  .'  So  you  will  the  cunstilulion  as  changed;  but  that  will  not 
recall  or  clianire  the  i)ast  decree  as  made,  whethei  for  emancipation  or  any  other 
purpose  under  the  old  constitution.  Besides,  it  is  no  easy  matter  to  change  the 
constitution  of  a  stale.  In  most  of  the  states  a  majority  of  at  least  two- thirds  is 
required  to  effect  this  change.  In  some  slates,  for  instance,  in  Maryland,  as  to 
slavery,  it  reijuires  the  unanimous  consent  of  both  branches  of  the  legislature  ;  and 
ia  many  cases  the  proposed  remedy  of  changing  our  stal'j  constitutions,  might 
prove  quite  ineffectual,  and  in  no  case  could  it  recall  the  past,  or  obliterate  the 
rights  accrued  under  your  construction  of  the  old  constitution. 

In  the  case  of  the  Bank  of  Hamilton  v.  Dudley,  2  Peters,  492,  the  question  was, 
whether  the  court  of  common  pleas  of  Ohio  had  authority,  as  a  court  of  probate 
under  the  constitution  of  that  state,  to  order  the  probate  sale  of  certain  property. 
The  case  was  argued  at  one  term;  but  tlii  court  hearing  that  the  same  question 
was  "depending  before  the  highest  judicirf  tribunal  of  the  stale,"  Chief  Justice 
Marshall  announced  that '■  the  case  was  held  under  advis 'ineiil,"  to  receive  that 
opinion.  The  counsel  opjjosed  to  the  Oliit)  decision,  contended,  that  "  this  court 
will  never  follow  the  law  as  decided  by  the  local  tribunals,  unless  il  be  settled  by 
«  series  of  drcisions,  and  is  acquiesced  in  by  the  profession.  But  it  is  asked  in  this 
case,  to  yield  ini|>licit  obedience  to  an  isolated  case,  in  the  decision  of  which  the 
court  was  divided;  a  decision,  too,  as  il  is  solemnly  believed,  fraught  with  the  most 
pernicious  and  ruinous  consecjuences;  and  which,  unless  the  learning  and  justice 
of  the  profession  are  greatly  mistaken,  will  never  meet  its  approbation."  The  same 
counsel  also  contended,  that  the  order  of  the  court  of  common  pleas,  to  sell  the 
property,  must  be  considered  res  judicata  and  conclusive,  till  reversed,  and  not  to 
be  reversed  in  a  collateral  issue.  In  reply  to  this  last  position,  as  to  the  order  of 
this  inferior  court  of  common  pleas,  the  court  regarded  it  as  to  "  be  treated  with 
great  respect,  but  not  as  conclusive  authority."  In  regard,  however,  to  the  decision 
of  the  highest  court  of  the  state,  expounding  their  state  constitution,  Chief  Justice 
Marshall  thus  announced  the  opinion  of  this  court :  "  It  is  also  contended,  that  the 


(i 


t':*^ 


xlvi 


Groves  et  al.  v.  Slaughter. 


jurisdiction  of  the  court  of  common  pleao  in  teHtamoii'ary  matters,  is  establislied  by 
tlie  constitution  ;  and  that  the  exclusicc  poictr  of  the  stale  courts,  to  construe  lejfis- 
lative  acts,  does  not  extend  to  tlir,  /larnmoiint  taw,  so  as  to  enable  them  to  give  etH- 
cacy  to  an  act  which  is  contrary  to  the  constitution.  We  runnot  admit  tiiis  dis- 
tinction. The  judicial  department  of  any  irorernment,  is  tlie  ris(ltlful  expositor  of 
its  laws;  and  kmi'iiatic ai.lv  of  its  suitrevu  law.  If  in  a  case  depending  before 
any  court,  a  legislative  act  shall  conflict  with  the  constitution,  it  is  admitted  that 
the  court  must  tixercise  its  judgment  on  both,  and  that  the  constitution  must  con- 
trol the  act.  The  court  must  determine  whetlur  a  repugnancy  does  or  does  not 
exist,  and  in  making  this  determination,  must  construe  both  instruments.  That 
its  construction  of  the  one  ia  authority,  while  its  construction  of  the  other  is  to  be 
disregarded,  is  a  proposition  for  which  the  court  can  perceive  no  reason."  Such 
was  the  view  of  this  court,  of  a  decision  of  the  highest  court  of  a  state  expounding 
its  state  constitution  ;  not  a  series  of  decisions,  but  a  sins^lc  decision  just  pronounced 
by  a  ditndcd  court.  It  was  regarded  as  conrliisivc,  because  the  final  construction 
of  its  state  laws  was  a  question  within  "  the  exclusive  pow>.r  of  the  state  courts;" 
they  were  "  the  rightful  expositor  of  its  laws,  and  cmplMlically  of  its  supreme  law." 

In  Coates  v.  Mus  >,  1  Brock.  539,  543,  in  a  case  overruling  a  decree  for  money, 
not  land,  growing  cat  of  a  construction  of  a  state  statute,  Chief  Justice  Marshall 
said :  "  It  is  always  with  much  reluctance  that  I  break  the  way  in  expounding  the 
statute  of  a  state,  fo  tlie  exposition  of  the  acts  of  cvcnj  legislature  is,  1  think,  the 
peculiar  and  appropuate  duty  of  the  tribunals  created  by  that  legislature." 

In  Gardner  v.  Collins,  2  Peters,  89,  this  court  say,  in  regard  to  the  construction 
of  an  act  of  the  legislature  of  Rhode  Island,  that  "  If  this  question  had  been  settled 
by  any  judicial  decision  in  the  state  where  the  land  lies,  we  should,  upon  the  uni- 
form principles  adopted  by  this  court,  rec  jgnise  that  decision  as  part  of  the  local 
law." 

In  the  case  of  the  United  States  v.  Morrison,  4  Peters,  124,  where  the  question 
arose  on  the  construction  of  a  statute  of  a  state,  in  regard  to  the  interpretation  of 
which  it  was  admitted  by  the  court,  that  "  different  opinions  seem  to  have  been 
entertained  at  different  times ;"  under  which  state  of  the  facts,  the  circuit  court  of 
the  United  States,  for  the  east  district  of  Virginia,  made  a  decision  and  construction 
one  way,  (Chief  Justice  Marshall  presiding,)  s  ibsequently  to  this,  the  same  ques- 
tion was  decided  differently  by  the  highest  court  of  Virginia  ;  and  the  case  not  yet 
reported,  was  quoted  in  manuscript,  when  this  court.  Chief  Justice  Marshall  pro- 
nouncing the  opinion,  reversed  his  own  judgment  below,  upon  this  single  decision 
just  made  by  the  state  court,  on  a  construction  of  their  statute  in  regard  to  which 
much  difference  of  opinion  had  before  prevailed.  In  delivering  the  opinion  of  the 
court,  Chief  Justice  Marshall,  after  referring  to  the  decision  by  the  circuit  court, 
said  :  "  A  case  was  soon  afterwards  decided  in  the  court  of  appeals,  in  which  this 
question  on  the  execution  law  of  the  state  was  elaborately  argued,  and  deliberately 
decided.  That  decision  is,  that  the  right  to  take  out  an  elegit  is  not  suspended  by 
suing  out  a  writ  of  fieri  facias,  and  consequently  that  the  lien  of  the  judgment  con- 
tinues pending  the  proceedings  on  that  writ.  This  court,  according  to  its  uniform 
course,  adopts  <,nat  construction  of  the  act  which  is  made  by  the  highest  court  of 
the  state." 

In  Green  v.  Neal,  G  Peters,  291,  when  this  court  had  twice  decided  in  a  certain 
manner  the  construction  of  a  law  of  Tennessee,  and  the  highest  court  of  that  state, 
by  a  single  decision,  ruled  tiie  same  point  differently,  this  court,  in  1832,  over- 
ruled its  own  two  former  decisions  of  this  question,  and  adopted  the  last  and  recent 
decision  of  the  supreme  court  of  Tennessee.  The  very  question  raised  was 
whether  the  state  decision  was  merely  entitled  to  high  consideration  or  was  con- 
clusive ;  and  the  court  expressly  decided  that  "  where  a  question  arises  under  a 
local  law,  the  decision  of  this  question  by  the  highest  judicial  tribunal  of  a  state 
should  be  considered  as  final  by  this  court."  This  was  a  strong  case,  especially  as 
the  state  decision  adopted  in  that  case,  was  a  single  decision  and  of  recent  date, 
and  opposed  tn  previous  and  contrary  decisions  of  the  same  question  by  the  same 
state  tribunals.  But  the  court  recognised  the  obligatory  character  of  the  state  de- 
cision, even  in  a  case  "where  the  state  tribunals  should  change  the  construction," 


.■^ 


i 


Groves  et  al.  v.  Slavghter. 


xlvii 


Btahlislied  by 
tnstrui)  lejris- 
I  to  give  effi- 
mit  tliJH  (Ii8> 

'jcpositor  of 
iiliiig  before 
dniitted  timt 
n  must  Con- 
or does  not 
ents.  That 
tber  is  to  be 
nn."  Such 
BApouuding 

/tronoumcd 
ionstruction 
ite  courts;" 
>rrinc  laic." 

for  money, 
50  Marsliall 
unding  the 
I  think,  the 

instruction 
een  settled 
in  the  uni- 
f  the  local 

e  question 
•etntion  of 
have  been 
it  court  of 
nstruction 
ame  ques- 
se  not  yet 
'shall  pro- 
'  decision 
to  which 
on  of  the 
lit  court, 
hich  this 
liberately 
ended  by 
lent  con- 
uniform 
court  of 

a  certain 
liat  state, 
32,  over- 
d  recent 
sed  was 
was  con- 
under  a 
f  a  state 
cially  as 
nt  date, 
le  same 
state  de- 
letion," 


nltliough  in  such  a  case  of  contradictory  decisions  by  the  same  state  court  of  the 
same  question,  they  might  possibly  not  corisid'^r  a  "  single  adjudication"  as  conclu- 
sive,    in  such  a  case,  we  have  seen  Chie>  Justice  Marshall's  course  was  to  wait, 
if  possible,  for  further  proceedings  in  the  state  courts;  but  where,  as  in  the  cases 
in  4tli  and  2d  i'eters,  there  was  a  single  decision  on  the  construction  of  a  state  law 
by  the  highest  court  of  a  state,  ((••^iiHicting  with  no  previous  adjudication  of  the 
saiite  tribunal)  and  a  decision  just  uiti'le  and  in  one  case  not  yet  reported,  and  con- 
trary to  a  previous  decision  of  the  same  question  by  the  Chief  Justice  himself,  he  at 
once  adopted  these  single  do  isions  of  a  state  court,  and  one  of  them   made  by  a 
divided  court,  an  svltling  the      w  of  the  state,  and  as  conclusive  and  obligatory,  and 
"eiii[)liatically"  so,  os  regards  a  constniction  by  the  highest  court  of  a  state  of  ita 
Ntutt)  constitution.     And  here  I  would  uine  respectfully,  although  it  is  unnecessary 
to  go  so  far  in  this  case,  is  not  the  last  decision  of  the  supreme  court  of  a  state  ex- 
pounding a  state  law,  absolutely  obligatory,  even  although  it  may  conflict  with  a 
previous  decision  of  the  some  tribunal  ?     I'he  court  in  the  above  case  say  ;     "Are 
not  the  injurious  effects  On  the  interests  of  the  citizens  of  a  state,  as  great  in  re- 
fusing t(/  adopt  tlie  chani^r,  of  construilion,  as  in  refusing  to  adopt  the  first  conslruc- 
tion.     A  refusal  in  the  one  case,  us  well  as  in  the  other,  has  the  effect  to  establish 
in  the  state  two  rules  of  pro/icrtij-     Would  not  a  change   in  the  construction  of  a 
law  of  the  United  States,  by  this  tribunal,  be  obligatory  on  the  state  courts.'     The 
statute,  as   lost  r/poundrd,  would  be  the  law  of  the  Union;  and  why  may  not  the 
same  etlect  be  given  to  the  last  exposition  ol' a  local  law  by  the  state  court .''"  Chief 
Justice  Marshall,  in  10  Wheat.  159,  says:  "This  court  has  uniformly  professed 
its  disposition,  in  cases  depending  on  the  laws  of  a  particular  state,  to  adopt  the 
construction  which  the  courts  of  the  state   have  given  to  those  laws.     This  course 
is  founded  on  the  principle,  .supposed  to  be  nnivcrsally  rcroirnised ,  that  the  judicial 
dep.artment  of  every  government,  wiiere  such  department  exists,  is  the  appropriate 
organ  for  construing  the  legislative  acts  of  that  government.     Thus,  no  court  in  the 
universe,  which  profcfsrd  to  In:  fforernci'  hij  prinri/ile,  wouW,  we  presume,  undertake 
to  say  that  the  cotirts  of  Great  Britain,  or  of  France,  or  of  any  other  nation,  had  mis- 
understood, their  own  statutes ,  and  therefore  erect  itself  into  a  tribunal  which  should 
correct  such  misunderstanding.      We  receive  the  construction  given  by  the  courts 
of  the  nation  as  the  true  sense  of  the  law,  and  feel  ourselves  no  more  at  liliertij  to 
depart  from  that  construction,  than  to  de[)art  from  the  words  of  the  statute.    On  this 
principle,  the  construction  given  by  this  court  to  the  constitution  and  laws  of  the 
United  States  is  received  by  all  as  the  true  construction;  and  on  the  same  principle 
the  construction  given  by  the  courts  of  the  several  states  to  the  legislative  acts  of 
those  states,  is  rrcr.iecd,  us  true,  unless  they  come  in  conhlct  with  the  constitution, 
laws,  or  treaties  of  the  United  States."     Why  then  should  this  court  presume  that 
the  highest  judicial  tribunal  of  our  state  "had  misunderstood"  their  own  constitu- 
tion, and  therefore  that  this  court  "  should  correct  that  misunderstanding."  Is  this 
court  more  familiar  than  the  highest  court  of  our  state  with  the  policy  of  the  state 
as  regards  the  introduction  of  slaves  as  merchandise ;  are  they  as  likely  to  know  the 
true  intention  of  the  framers  of  the  coi..stitution  of  our  state  as  regards  the  clause 
in  controversy  as  the  distinguished  judge  who  delivered  the  opinion  of  the  court 
in  our  favour  in  this  case,  and  who  may  be  said  to  have  framed  and  moulded  into 
its  present  form  that  very  clause  as  a  member  of  the  convention  which  franied  the 
constitution,  and  as  chairman  of  the  very  committee  to  whom  the  clause  was  con- 
fided .'     Chief  Justice   Marshall  <lid  not  feel  himself  "  at  liberty  to  depart"  from 
the   construction  of  the  state  courts,  and  surely   that  truly  great  man  hns  never 
been  accused  of  endeavouring  to  press  too  far  the  powers  of  the  state  authorities. 
Here  too  is  a  complete  answer  to  the  position  that  the  federal  court  has  jurisdiction 
of  the  case  between  citizens  of  different  states,  and  therefore  may  disregard  the 
state  decisions ;  and  have  not  the  tribunals  of  all  the  states  of  the  Union  jurisdic- 
tion in  the  same  manner  where  a  contract  made  in  one  state,  is  sued  on  in  another 
state,  or  even   in  another  country,  if  the  defendant  or  his  property  can  be  found 
there  ;  yet  in  al!  these  cases  it  is  conceded  that  the  construction  of  the  state  law  or 
constitution,  by  the  state  court,  is  conclusive  in  all  other  state  courts  or  courts  of 
other  nations.     This,  says  Chief  Justice  Marshall,  is  an  universal  principle;  and  it 


■rit  -^stic^im  ■  I  ^  t^  - 


llil  ll{   I 


xlviii 


Orovea  et  al.  r.  Slaughter. 


I  I 


«"l 


ii  known  topxtcnd  tn  all  caiioii  whntlier  involvin((  cnntrnveraipii  ni  to  rfal  or  only 

aH  to  iierxoniil  |irii|)iirty  ;  mid  Jiiil);t>  Miimliall  coiiMiilfm  it  an  iiior*^  "  r.Mi'iiA'i'icAi.i.t " 
the  rule  in  all  <-iis<>m  of  tlu<  (■onNtriictioii  of  a  jttiitt*  coiiNtitiitioii.  Hut  if  lIuTt*  be  any 
one  cant!  innri'  tiiun  nil  ntluTH  in  winch  tht*  ruli>  hIidiiIiI  ht>  rijjidly  upplicd,  it  is  in 
local  ifum'.iiins  us  to  nhircrij,  a  i|iifMtiiin  in  itHcll'  mo  peculiarly  local,  mo  entirely  d«« 
pendent  upon  stale  I.iwh,  iind  in  rc);ar(l  to  which  to  eHlntdish  "two  ruleH  ol' proper- 
ty" in  the  name  Ntate,  the  one  liy  IhiH  court  and  the  other  liy  the  Ntale  trilMinaU, 
would  he  atleiuled  willi  miu^Ii  I'litul  conHcfpienceH.  See  (i  Wheat.  127  ;  !>  I'elem,  2M0. 
And  now  Ibr  the  llrst  time,  alter  llie  lupse  of  more  than  half  a  century,  Ih  a  ditVerent 
rule  aHked  to  be  applied  to  the  hiirhext  judicial  tribunal  of  MiHHiHiiip[)i,  and  th« 
state  itHelf  to  h(>  humiliated  by  a  diHcriuiinution  ho  oiliouM  and  utijuttt. 

Hut  the  decii^ion  upon  which  we  rtdy  iH  Maid  to  he  extra-judicial.  In  not  this,  ns 
regardi<  thiw  case,  a  mere  I'ornuil  diHtiiiclion  ?  The  chancellor,  in  the  case  cited  by 
our  o|)ponents,  and  sent  up  to  the  supreme  court,  (^ave  "  brielly"  his  views  on 
this  qiif.ilion,  for  the  exiiresH  nnil  important  purpose  as  he  declared,  "  to  put  it  in 
train  for  ultimnte  decision."  Such  was  his  desire,  such  the  wish  of  the  proffssion, 
and  the  true  interest  id" all  parties,  that  an  "  ultimate  decision"  should  be  inude  by 
the  liiijliest  court  of  the  stale,  so  as  to  setlle  the  law  upon  the  i|uestion.  The  co  irt 
expressly  declare,  in  their  opinion,  that  this  <iuestion  was  involved  in  that  case,  a»d 
presented  by  it  "  for  their  consideration."  They  did  hinr,  eoiisiihr,  and  ihlermine 
it;  and  now  such  a  decision  is  calltMl  extra-judicial !  It  is  called  so  because  the 
question  arose  in  a  cose  in  chancery,  and  not  at  law,  anil  one  of  the  judges  who 
delivered  the  opinion  permitted  the  slave  trader  to  reap  the  fruits  of  his  unlawful 
contract,  because  the  defence  was  not  made  at  law;  but  he  de('iiled  that  it  was  a 
good  defence  at  law.  Cliief  Justice  Sharkey  pronounced  it  a  (;ood  defence  both  in 
law  and  eciuity,  as  certified  in  this  very  case  under  the  seal  of  the  court ;  and  so  far 
then  as  he  was  concerned,  his  opinion  was  both  in  form  mid  sulistaiice  a  decision 
of  the  vvry  ([Ueslion,  and  against  the  trader  both  as  a  '(uestion  of  law  and  equity. 
Call  it  by  what  name  ynu  may,  it  is  a  solemn  and  (udiberate  e.vposilion,  unani- 
mously made,  upon  the  fullest  consideration,  by  the  lu^rhcst  court  of  the  state,  of 
this  very  clause  of  our  constitution,  for  the  express  purpose  of  setllinjj  the  law 
upon  the  (|ueslion  ;   and  it  has  so  settled  it  in  Mississippi. 

Chief  Justice  Marshall,  in  the  case  in  llrockenbrouifh,  expressed  his  deep  regret 
that  he  was  compelled  from  necessity  to  cnnslruo  a  state  statute  in  advance  of  a 
state  construction.  In  the  case  in  tlh  Peters,  he  revoked  his  own  decision  a  few 
months  after  it  was  delivered,  upon  a  siiifrlo  unreported  case,  decided  in  the  mean- 
time by  the  highest  court  of  a  state,  expounding  their  own  statute  upon  a  monied 
and  not  a  landed  controversy.  What  said  he  in  the  case  in  KHh  Wheaton,  of  the 
impropriety  of  accusing  the  judicial  tribunals  of  a  state  of  misunderstanding  and 
misconstruing  their  own  state  laws.'  What  said  he  in  the  case  from  2  Peters.' 
Hearing  that  the  question  in  that  case,  of  the  construction  of  u  clause  of  the  consti- 
tution of  Ohio  was  pending  before  the  highest  court  of  that  ntate,  he  waitrd  for  n 
year  to  hear  that  decision  ;  and  then  conformed  to  it,  though  delivered  by  a  divided 
court.  What  would  he  do  in  this  case  ?  conb^rm  to  the  exposition  of  their  own 
constitution  by  the  highest  court  of  the  state.  Desiring.  a«  he  did,  not  a  formal, 
but  an  actual  and  bona  tide  compliance  with  the  exposition  of  their  own  constitu- 
tion by  its  rightful  expositors,  the  liigheBt  court  of  the  state,  would  hi',  in  the 
face  of  so  solemn  and  deliberate  a  decision,  rush  hea;ll  ng,  now,  at  this  term, 
without  a  moment's  delay,  into  certain  conflict  with  ihe  highest  courts  of  a  state, 
upon  a  question  regarding  the  construction  of  their  own  constitution  ?  And,  if 
this  great  man,  with  all  his  learning,  experience,  and  unsurpiissid  intellectual 
power,  would  make  no  such  experiments,  and  enter  into  no  such  conflicts,  what 
other  judge  will  venture  .' 

ftuis  poreat ;  ubi  non  dux  erit  Achillea. 

I  approach  now  the  final  question  raised  by  our  opponents  in  their  printed 
brief,  as  follows  :  "  But,  assuming  that  the  constitution  of  Mississippi  does  contain 
a  clear  and  incontestable  prohibition  of  the  introduction  of  blaves  as  merchandise 


•^-     i 


(Srovra  rt  at.  v.  Shwfrhler. 


xlix 


to  reni  or  only 

MI'IIAIK  Al.l.r" 

I  if  llnTH  be  ony 
|>|ili<-<l,  it  ia  in 

HO  »'nlirfly  de- 
riileH  1)1'  pr<i|ier- 
Ktiittf  triliiinalM, 
;  !>  I'l-liTu,  280. 
y,  iH  a  (liferent 
iHiii|i|ii,  and  tli*< 
t. 

In  not  tliJH,  na 

B  CMse  cited  by 

11..  ■' 

liiH  Views  on 

I.  "  to  put  it  in 

the  |)ro(t'8Bion, 

lid  l)e  inude  by 

in.     'I'lie  CO  irt 

Unit  caiie,  ai  d 

(uid  ilitirmini: 

o  bei'iiiise   the 

le  jiidffes  who 

t"  liiM  unliiwfiil 

d  that  it  was  a 

('fence  both  in 

lut;  mid  HO  far 

nee  a  decision 

iw  and  equity. 

Dsition,  unani- 

•f  the  slate,  of 

tlliiiir  the  law 

ia  deep  regret 

ndvance  of  a 

ecision  a  few 

in  the  niean- 

pnn  a  inonied 

ealon,  of  the 

sliiiidirig  and 

0111  2  Peters  .' 

of  the  consti- 

ipuitrd  for  a 

l)y  a  (iivided 

f  their  own 

not  a  formal, 

\vn  constitn- 

li''.  in  the 

It  this  term, 

s  of  a  state, 

1  i     And,  if 

intellectual 

nflicts.  what 


heir  printed 

oes  contain 

merchandise 


ifi 


within  ita  iimitii;  than  th«r«  rnninins,  in  the  iaiit  plaon,  to  be  conHidored  fourthly, 

■  ^riiVH  and  niiportjiiit  i|iieNti(iii,  wliii'h  thiM  ciiiirt  y.  ill  have  to  deride  ;  and  that  ix, 
whelhiT  it  it)  I  otnpelent  to  any  ulu'ie  in  thn  iJiinin,  by  its  Heparate  authority,  either 
in  itM  coniitiliilioii  or  ito  lawM,  to  re|futut«  conmiercM  anion);  the  HWeral  Htati*M,  by 
enartiii|{  and  etifori'inK  mirli  a  prohiliUioii  '  'I'lie  coMHtitiition  of  the  I'liited  State* 
vestrt  in  conffrcHit  llie  power  '  to  reinitiate  (toiiiiiit'ri'e  with  f'irei}rn  natioiiH,  and 
BUionif  llie  tteveral  Htalt  h,  and  with  the  linliari  trilieH.'  'Chat  power  niUHt  be  re- 
garded  u  (>x('|ii.sive|y  poHHi-xHi'ii  liy  con^rreHU.  The  innnici|ial  lavvs  of  a  Htate  may, 
perhnpN,  decide  wiiat  Hhall  be  the  HiibjeutH  of  property  ;  but  when  tiiey  have  so 
derided,  when  they  liave  ntaiiiped  the  chararter  of  property  on  any  particular 
niovablex,  tliey  cannot  interdiiH  tlie  removal  ot'  Hiniilar  iiiovalili^s  aH  inerchandixe 
from  any  "llier  Htate,  wlione  laws  iiIho  recognise  Ijieni  as  property.  Much  an  inter- 
dictioti  would  be  a  regulation  of  comiiierce  among  the  statex  ;  and  if  a  Htate  can 
make  it,  it  may  prohibit  the  inlrnduction  of  any  produce  from  another  state. 
Houth  Carolina  may  pr<diiliil  the  introduction  of  live  stock  from  Ki^ntucky,  and 
Kentucky  iimy  prohibit  the  inlroductioii  williin  lier  limitH,  of  the  cotton  or  rice  ot 
Booth  Carolina,  it  i.s  not  iiitcnded  to  argue  that  a  Htate,  which  does  not  tolerate 
slavery,  in  bound  to  admit  the  inlroducliou  of  siaveH,  to  be  held  as  property,  within 
its  liinilH  :  and  the  ri';:sou  for  excludiiiir  them  iH,  that,  by  the  laws  of  the  tree  stateM, 
slaves  cannot  be  held  in  boiiilage.  'i'he  case  before  the  court  is,  that  of  the  trans- 
portalioii  of  nlaves  from  one  slave  state  to  another  slave  state." 

1  concur  with  our  o|>poiii-iits,  that  this  is  indeed,  "  a  ^ravf.  and  importnnt  ques- 
tion ;"  the  most  so  in  my  juijgiiient  which  haw  ever  been  brought  u|)  tor  the  deter- 
mination of  Ihi.i  court.  The  power  to  legulate  commerce  among  the  states  it 
''supreme  and  e.Yclusive,"  it  is  vested  in  congress  alone;  and  if  under  it  congresi 
may  forbid  or  ^lUihori/e  the  transportation  of  slaves  from  state  to  state,  in  defiance 
of  state  aullioiily,  then  indeitd,  we  shall  have  reached  a  ciisis  in  the  abolition  con- 
troversy, most  alarming  and  inonientous. 

In  their  petitions  to  congress  by  the  abolitionists,  they  assert  the  power  here 
claimed,  and  call  upon  that  body  to  exercise  it  by  legislative  enactments,  in  regard 
to  the  sale  and  transportation  of  slaves  from  state  to  state.  These  petitions  have 
been  repeatedly  rejected  or  laid  on  the  table,  as  seeking  an  object  beyond  the  con- 
stitutional power  of  congresH,  by  overwhelming  majorities  of  both  houses;  but  if 
this  court,  as  the  interpreter  of  the  constitution  of  the  Union,  in  the  last  resort, 
now  inform  congress  that  this  power  is  vested  in  congress  ^lllll.  no  one  can  pre- 
dict the  consequences.  Let  it  be  observed,  also,  tlii  whilst  all  these  laws  of  all 
the  slave-holding  slates  on  this  subject  are  asked  to  be  pronounced  unconstitu- 
tional, the  lawH  on  the  niinie  wiibject,  of  the  "free  slates,"  as  they  are  designated 
by  our  oppoiu^nts,  are  sought  to  be  placed  above  thw-  power  of  congress  on  thia 
question.  A  distinction  is  thus  directly  mat.4e,  by  our  opponents,  between  the 
"free  states"  and  the  "slave  states,"  os  contradistinguished  in  their  brief  on  this 
question  ;  and  the  "  free  states"  are  asked  to  be  regarded  as  sovereign,  and  the 
"  sl.ive  states"  as  subject  states,  upon  all  the  points  involved  in  this  controversy. 
Thus  it  follows,  that  the  contrai-.t  sought  to  be  enforced  in  this  case,  could  not  be 
entorceJ  if  made  in  Massachusetts,  because  prohibited  by  her  constitution  ,  but 
that  the  same  identical  contract  can  be  eiitorced  if  made  in  the  state  of  Mississippi, 
although  "ixpressly  prohibited  by  the  constitution  of  that  state.  Massachunetts, 
then,  possesses  sovereign  and  absolute  power  ov^r  this  subject,  and  Mississippi  no 
power  whatever. 

The  constitution  is  then  not  to  have  tlie  same  uniform  effect  throughout  all  the 
states,  as  regards  the  supreme  and  exclusive  jiower  of  congress  to  regulale  com- 
merce among  the  states;  but  this  power  is  to  r.  iige  undisturbed  tbrouglioiit  ill  the 
"slave  states,"  striking  down  all  their  laws  ami  constitutions  on  this  subjeci.  uhilHt 
the  same  power  is  arrested  at  the  limits  of  earli  one  of  the  "  free  states  "  ot'  this 
Union.  Such  i.s  the  degrading  attitude  in  which  every  slave-holding  slate  is  placed 
by  this  position.  But,  let  me  ask,  is  not  the  admission  of  our  opponents,  that  this 
power  of  congress  cannot  enter  the  limits  of  the  "  free  states,"  conclusive  ?  The 
history  of  the  constitution  tif  the  Union  shows  that  the  want  of  uniformity,  as  re- 
gards regulations  of  commerce,  was  the  great  motive  leading  to  the  formation  of 


:  \ 


1^  I';  ! 


n  , 


1 


Groves  et  al.  v.  Slaughter. 


that  instrument.  It  was  the  sale  cause  assigned  in  the  resolutions  of  Virginia  (of 
Mr.  Madison)  n(  1785  and  1786,  as  a  consequence  of  which  was  assembled  the 
convention  which  framed  the  constitution  of  ttie  Union.  9  Wheat.  225.  To  Mr. 
Madison  and  to  Virginia  belong  the  undisputed  honour  of  assembling  that  conven- 
tion; and  the  sole  object  avowed  in  the  Virginia  resolutions  was,  by  the  adoption 
of  the  constitution,  to  procure  for  all  the  stales  "  uniformity  in  their  commercial  re- 
gulations."  Virginia  had  endeiivoujed,  prior  to  tht  adoption  of  the  constitution, 
to  regulate  commerce  between  her  ports  and  those  of  oilier  states  and  nations,  but 
she  found  that  these  regulations  only  diove  lliis  commerce  to  the  rival  ports  of 
Maryland.  She  negotiated  with  Maryland  to  adopt  similar  regulations;  but  Mary- 
land ascertained  that  she  could  not  adopt  them  without  driving  her  commerce  to 
Pennsylvania,  nor  Pennsylvania  without  New  York,  nor  New  York  without  New 
England.  Absolute  and  perfect  uniformity  was  required  to  give  due  effect  to  regu- 
lations of  con-merce  among  all  the  states;  and  hence  the  call  of  the  convention 
which  formed  ihe  constitution  of  tiie  Union,  at  the  in.stanoe  of  Virginia,  to  establish 
this  uniformity.  If,  then,  this  power  to  regulate  commerce  among  all  the  states 
upon  the  principle  of  perfect  uniformity,  cannot,  as  regards  the  transportation  and 
gale  of  slaves,  have  the  same  uniform  effect  in  all  the  states,  but  can  be  exerted  in 
and  between  some  states  only,  and  not  in  others,  it  is  a  conclusive  argument,  that 
aa  regards  this  locii";  and  peculiar  question  of  slaves,  and  their  sale  and  transporta- 
tion from  state  to  state,  was  never  designed  to  be  embraced  under  the  authority  of 
congress  to  regulate  commerce  among  the  states.  The  power  to  regulate  com- 
merce among  the  states,  :s  a  power  to  regulate  commerce  among  all  tlie  states ; 
and  by  regulations  of  perfect  uniformity,  applying  to  all,  and  exempting  none. 
But  Massachusetts,  it  is  conceded,  may,  as  regards  the  transportation  into,  and  sale 
of  slaves  in  that  state,  exempt  herself  from  the  operalion  of  the  power  of  congress 
to  regulate  commerce,  and  from  all  laws  of  congress  on  that  siiiiject.  Yet  this 
power  is  not  only  to  operate  with  perfect  uniformity,  but  is  (iecjared  by  cur  oppo- 
nents to  be  "supreme  and  exclusive."  And  may  this  power  be  tlins  struck  down 
as  regards  a  single  state,  by  the  operation  of  state  laws  and  state  authority  ?  Does 
any  one  state  possess  the  authority  to  exempt  herself  from  a  power  vested  in  con- 
gress alone,  and  prohibited  to  the  slates.'  Is  this  the  tenure,  at  tlie  will  of  a  state, 
hy  which  congress  holds  its  powers,  and  especially  those  which  are  "  supreme  and 
exclusive." 

It  is  said,  Massachusetts  may  exempt  herself  from  the  operation  of  this  power, 
by  declaring  slaves  not  to  be  property  witliin  her  limits.  But  is  there  any  way  in 
which  a  state  may  exempt  itself  from  the  operation  of  a  power  vested  in  congress 
alone  ;  or  does  this  exempting  power  dei)end  on  the  mode  in  which  il  is  exercised 
by  a  state?  But  Massachusetts,  it  is  said,  may  exempt  herself  from  the  operalion 
of  this  power  of  congress,  by  declaring  slaves  not  to  be  property  within  her  limits ; 
and  if  so,  may  not  Mississippi  exempt  herself  in  a  similar  manner,  by  declaring,  as 
she  has  done,  that  the  slaves  of  other  states  shall  not  be  merchandise  within  her 
limits.  Cannot  the  state  say,  you  may  take  bacli  liieae  slnves  from  our  limits,  but 
they  shall  not  be  an  article  of  merchandise  here  ;  or  may  she  not  say,  your  slaves 
in  other  states  shall  not  be  introduced  for  sale  here,  or  if  so,  our  laws  will  emanci- 
pate them;  or  as  Maryland  now  does,  send  tliein  to  Africa,  if  they  will  go,  and  if 
not,  continue  them  as  slaves  in  the  state,  but  annul  tlie  sale  by  the  importer?  And 
must  the  state  have  previously  emancipated  all  negroes  who  had  been  slaves  within 
her  limits,  in  order  that  she  may  bo  permitted  to  emancipate  or  forbid  the  sale  of 
other  negroes  introduced  as  slaves  from  other  states?  A  certain  number  of  ne- 
groes are  now  slaves  in  Mississippi,  and  articlej  of  merchandise  by  virtue  of  state 
laws  and  state  power,  within  her  limits.  Now  it  is  conceded,  that  the  state  may 
declare  all  these  not  to  be  slaves,  or  not  to  be  merchandise,  witiiin  her  limits.  Yet 
it  is  contended  she  may  not  make  the  same  declaration  as  to  the  negroes  of  other 
states  when  introduced  into  the  state. 

A  state  may,  it  is  conceded,  establish  or  abolish  slavery  within  her  limits;  she 
may  do  it  immediately,  or  gradually  and  prospectively;  she  may  confine  slavery  to 
the  slaves  then  born  and  living  in  the  state,  or  to  them  and  their  descendants,  or 
to  those  slaves  in  the  state,  and  those  introduced  by  emigrants,  and  not  for  sale, 


Groves  et  al.  v.  Slaughter. 


li 


or  to  thofle  to  be  introduced  witliin  a  certain  date.  All  these  are  exercises  of  the 
unquestionable  power  of  a  state,  and  over  which  congress  has  no  control  or  super- 
vision. Or  may  congress  supervise  tlie  state  laws  in  this  respect,  and  say  to  Mas- 
sachusetts, and  the  other  six  states,  who  with  her  have  aboiislied  slavery,  slaves 
from  otjier  states  shall  not  against  your  laws  be  sold  within  your  limits;  hut  in  all 
the  remaining  nineteen  states  where  slavery  does  still  exist,  your  laws  against  the 
sale  of  slaves  from  other  states,  shall  be  nugatory.  Or  may  congress  again,  as  be- 
tween these  nineteen  slates,  say  to  New  Jersi^y,  Pennsylvania,  Ace,  you  have  con- 
fined slavery  to  the  slaves  already  within  your  limits,  and  make  all  born  after  a 
certain  date  free  ;  slaves  from  other  states  shall  not  therefore  be  sold  in  your  states, 
but  in  all  the  other  stales,  vvliere  the  existing  slaves,  us  well  as  their  offspring,  are 
held  in  bondage,  all  otiier  slav(!S  may  be  sold  within  your  limits,  from  other  states; 
if  this  be  not  so,  slaves  from  oilier  st-ilcs  may  be  sold  in  Pennsylvania,  Connecti- 
cut, Rhode  Island,  and  New  Jersey.  Negro  men  who  are  held  as  slaves  elsewhere, 
cannot  be  imported  and  sold  as  slaves  in  these  states;  because  although  negro  men 
now  there,  are  held  and  may  be  sold  as  slaves,  yet  the  descendants  of  the  female 
slaves,  if  there  be  any  born  hereafter,  are  to  be  free.  And  can  it  be  seriously  con- 
tended tliat  this  is  so,  and  that  upon  an  examination  of  the  various  conflicting  pro- 
visions of  state  laws  in  this  respev-t,  as  to  slavery  within  their  limits,  shall  depend 
the  question  whether  congress,  against  the  consent  of  the  states,  shall  force  upon 
some  states,  and  not  upon  others,  the  sale  of  slaves  within  their  linsits,  under  a 
general  comprehensive,  uniform,  supreme,  and  exclusive  power  to  regulate  com- 
merce among  all  the  stales.  The  power  to  declare  whether  men  sliall  be  held  in 
slavery  in  a  state,  and  whether  those  only  of  a  certain  colour,  who  are  already  there, 
shall  be  held  in  slavery,  or  be  articles  of  merchandise,  and  none  others,  or  whetiier 
others  introduced  fnini  other  slalfs  sliall  also  be  held  in  slavery,  or  be  articles  of 
merchandise  within  her  limits  is  exclusively  a  slate  power,  over  which  it  never 
was  designed  by  the  coiistilulion,  that  congress  should  have  the  slightest  control,  to 
increase  or  decrease  the  number  who  should  be  held  as  slaves  within  their  limits, 
or  to  retard  or  postpone,  or  influence  in  any  way,  directly  or  indirectly,  the  ques- 
tion of  abolition.  Such  a  power  in  all  its  effects  and  consequences,  is  a  power,  not 
to  regulate  commerce  among  the  states,  but  to  regulate  slavery,  both  in  and  among 
the  states.  It  is  abolition  in  its  most  dangerous  form,  under  the  mask  of  a  power 
to  regulate  commerce.  It  is  clearly  a  power  in  congress  to  add  to  the  number  of 
slaves  in  a  state  against  her  will,  to  increase,  and  to  increase  indefinitely,  slavery 
and  the  number  of  slaves  in  a  state,  against  her  aulhonty.  And  if  congress  pos- 
sess the  power  to  increase  slavery  in  a  state,  why  not  also  the  power  to  decrease  it, 
and  to  regulate  it  at  pleasure .'  Now  it  is  a  power  as  conceded  to  increase  slavery 
against  the  will  of  a  state,  within  its  limits,  whence  it  would  follow,  that  if  a  slate 
desires  more  slaves,  congress,  under  the  same  power,  may  forbid  the  transportation 
of  slaves  from  any  stale  to  any  other  state,  and  thus  decrease  slavery  as  regards 
any  state,  against  her  will  and  pleasure.  The  truth  is,  if  congress  possess  this 
power  to  "  regulate"  the  transportation  and  sale  of  slaves,  from  sta:''  to  state,  as  it 
may  all  other  articles  of  commerce,  and  slaves  are  to  be  placed  on  the  same  basis, 
under  this  supreme  and  exclusive  power  to  regulate  commerce,  authority  over  the 
whole  subject  of  slavery  between  and  in  the  states,  woulil  be  delegated  to  congress. 
And  yet  how  strangely  inconsistent  are  tiie  arguments  of  the  abolitionists:  they 
say  men  are  not  property,  and  cannot  be  property  by  virtue  of  any  Ipws  of  con- 
gress or  of  ihe  stales  ;  and  yet  that  as  such,  commerce  in  them  among  the  slates  may 
be  regulated  by  congress,  and  by  congress  alone.  We  say,  the  character  of  mer- 
chandise, or  property,  is  attached  to  negroes,  not  by  any  grant  of  power  in  the  con- 
stitution of  the  United  Slates,  but  by  virtue  of  the  positive  law  of  the  states  in 
which  they  are  found  ;  and  with  these  stales  alone  rests  the  power  to  legislate  over 
the  whole  subject,  and  to  give  to  theni,  or  take  from  them,  either  the  whole  or  from 
any  part  or  number  of  them,  those  already  there,  or  those  that  may  be  introduced 
thereafter,  in  whole  or  in  part,  the  character  of  merchandise  or  property,  at  their 
pleasure,  and  over  all  which  state  regulations  congress  has  not  the  slightest  power 
whatever. 
That  this  is  so,  follows  from  the  admission,  that  a  state  can  abolish  slavery,  and 


lii 


Groves  et  al.  v.  Slavghter. 


li 


i 
I  i " 


l!lii 


i 


fc  i  \ 


aij 


I  i 
!  ! . 


I 


make  all  the  slaves  within  her  limits  cease  to  be  property.  Massachusetts,  it  is 
said,  may  do  this;  and  may,  when  done,  pievent  the  sale  of  slaves  within  her  limits. 
But  may  she  therefore  declare  that  iiorses,  or  cuttle,  or  cotton,  or  any  other  usual 
article  of  commerce,  shall  not  be  property  wllhiu  her  limits,  and  thereby  pre- 
vent the  sale  by  the  importer  of  similur  articles,  introduced  from  abroad,  or  from 
any  state  in  the  Union  within  her  liiiills.''  Not  unless  she  can  abolish  property  and 
commerce,  so  far  as  she  is  concerned  with  all  foreign  nations,  and  witli  all  her  sis- 
ter states,  or  regulate  it  at  her  pleasure,  or  prescribe  the  articles  in  regard  to 
which  it  shall  exist. 

As  to  those  universal  articles  of  commerce,  known  and  recognised  in  all  the 
states,  and  bought  and  sold  in  all  the  states,  and  the  importation  or  exportation  of 
which  could  be  prohibited  by  no  state ;  it  was  right  and  proper  that  the  power  of 
congress  to  regulate  commerce  among  the  stales  should  apply,  operating  as  such 
regulations  would,  with  perfect  equality,  and  uniformity  upon  all.  But  as  regards 
slavery,  which  was  a  local  matter,  existing  only  in  some  states,  and  not  in  others, 
regarded  as  property  in  some  slates,  and  not  in  others,  it  would  have  been  most 
unjust,  that  that  very  majority  which  did  not  recognise  slaves  as  property  in  their 
own  states,  should  by  acts  of  c  )ngress  regulate  the  transfer  of  them,  and  sale  in 
and  among  other  states,  which  did  regard  them  to  a  certain  extent  as  property. 

That  the  very  states  which  refused  within  their  limits  to  recognise  slaves  as 
property,  should  claim  the  power  by  tiieir  votes  in  congress,  to  regulate  their 
transportation  and  sale  in  other  slates,  is  preposterous.  They  claim  the  power 
first  to  exempt  themselves  from  the  alleged  power  of  congress,  to  authorize  or  for- 
bid commerce  in  slaves,  and  then  assume  the  authority  to  apply  this  very  power 
to  other  states,  which  prohibit  the  traffic,  because  they  have  not  emancipated  all 
other  slaves  already  within  their  litnits.  Nay,  tlie  claim  is  still  more  preposterous  ; 
it  is,  that  this  power  may  be  thus  applied,  by  these  states  in  congress,  in  Missis- 
sippi, but  negro  male  slaves  shall  not  be  imported  or  sold  in  Pennsylvania,  or  New 
Jersey,  Connecticut,  and  Rhode  Island,  because  although  the  negro  male  slaves 
already  there  are  continued  as  slaves,  and  may  be  sold  as  such,  yet  the  descend- 
ants, should  there  be  any  of  the  female  slaves,  are  emancipated.  Slavery  exists, 
as  shall  be  shown,  and  slaves  are  property  and  may  be  sola  in  these  and  other 
states,  that  are  called  "free  slates;"  and  if  the  law  of  Mississippi,  prohibiting  the 
introduction  and  sale  of  slaves  from  other  states  is  void,  so  is  a  similar  law  in  all 
the  states  above  enumerated,  and  slaves  may  now  be  lawfully  imported  and  sold 
there.  Mississippi  has  said  these  slaves  shall  not  be  merchandise  within  her  limits. 
Can  congress  say  they  shall  be  merchandise  .'  Can  congress  create  in  any  state,  the 
relation  of  master  and  slave,  not  only  in  cases  in  which  it  does  not  exist,  but  in 
cases  forbidden  by  the  laws  of  the  states.''  Can  it  make  more  masters  and  more 
slaves,  than  the  state  desires  to  have  wiUiin  her  limits?  And  if  it  can  create  the 
relation  of  master  and  slave  in  a  state,  in  cases  forbidden  by  the  state  laws,  why 
not  in  the  same  cases  forbid  the  creation  of  the  relation,  or  dissolve  it,  when  it  al- 
ready exist .'  If  congress  can  increase  and  extend  slavery  in  a  state,  against  its 
wishes,  why  not  limit  it  or  abolish  it;  or  can  it  create,  and  not  destroy,  enlarge,  but 
not  diminish.'  The  commerce  to  be  regulated,  was  that  universal  commerce  in 
articles  of  merchandise,  regarded  as  such  in  all  the  states,  and  throughout  the  nation, 
and  which  existed  in  every  state,  and  which  commerce  was  not  to  be  created  or 
abolished  by  state  laws,  but  was  subject  between  all  the  states  to  the  supreme,  ex- 
clusive, and  uniform  regulation  of  congress.  It  was  commerce  in  merchandise, 
and  regarded  as  such  by  all  the  states,  and  not  commerce  in  persons,  that  was  thus 
designed  to  be  regulated  by  congress.  Commerce,  if  it  may  be  so  called,  in  per- 
sons, was  not  the  thing  intended  to  be  regulated  by  congress,  for  it  was  local  and 
peculiar,  and  not  national ;  but  commerce  in  the  broad  and  cotnprehensive  sense  of 
that  term,  embracing  all  the  states  by  uniform  regulations,  and  designed  not  to  de- 
pend on  state  laws,  but  to  be  as  eternal  as  the  existence  of  the  Union,  and  coex- 
tensive with  the  operation  of  the  constitution,  which  embraced  in  all  its  power 
the  whole  Union,  and  all  its  parts. 

This  power  as  to  commerce  being  "  supreme  and  exclusive,"  it  could  recognise 
no  conflicting  or  concurrent  state  legislation,  and  being  a  power  to  authorize  and 


Groves  et  ah  v.  Slaughter. 


liii 


their 


enforce  this  commerce  in  and  among  ull  the  states,  and  from  siiit;  to  state,  it  could 
compel,  as  this  court  have  decided,  every  state  tu  permit  the  uale  by  the  importer  of 
all  theHe  articles  of  commerce  within  her  limits.  If  slaves  are  articles  of  com* 
merce,  in  view  of  this  power,  congress  can  force  their  sale  by  the  importer  in 
every  state;  for  no  state,  if  these  be  urticles  of  commerce  in  view  of  this  power, 
can  remove  them  from  this  liut,  by  declaring  them  not  to  be  property  within  her 
limits.  And  if  a  state  may  bO  defeat  this  clause  of  the  constitution,  as  to  one  class 
of  articles  embraced  witliin  the  commercial  power,  by  declaring  them  not  to  be 
property  within  her  limits,  she  may  make  the  same  declaration  as  to  any  or  all  other 
articles  embraced  by  this  power  of  the  constitution ;  forbid  their  importation  or 
sale  within  her  limits,  and  thus  regulate  at  her  pleasure,  or  annihilate  the  com- 
merce between  that  state  and  all  the  other  states.  It  follows  then  as  a  conse- 
quence, either  that  each  slate  at  its  pleasure  may,  as  lo  that  state,  annihilate  the 
whole  commercial  power  of  congress,  by  declaring  what  shall  or  shall  not  be  pro- 
perty within  her  limits,  or  that  slaves  were  designated  by  the  constitution  as  "  per- 
sons," and  as  such,  never  designed  to  be  embraced  in  the  power  of  congress  to 
regulate  commerce  among  the  states.  The  commerce  to  be  regulated  was  among 
the  several  states.  Among  what  slates  ?  Was  it  among  all,  or  only  some  of  the 
states  P  Was  it  a  national  or  section.il  commercial  code,  which  congress  was  to 
adopt .'  Was  it  to  operate  between  Virginia  and  Mississippi,  but  not  between  Vir- 
ginia and  Massachusetts?  Was  'I  a  legulation  that  would  operate  only  between 
two  stales ;  but  not  as  between  one  of  these  slates,  and  another  remote  or  adjacent 
state  ?  Was  it  a  regulation  confined  to  particular  stales,  and  to  be  changed  by 
those  states,  as  from  time  to  time  they  might  change  their  policy  upon  any  local 
question,  and  was  it  a  local  or  a  i»;>neral  commerce  .''  Could  it  regulate  by  com- 
pulsory enactments  an  inter-strti,'  -erce  in  particular  articles  between  certain 
states,  because  tiiose  stales  perrm  .  internal  covimerce  in  similar  articles;  but 
be  authorized  to  e.vtend  no  simih  '  '  lions  to  other  states  forbidding  such  inter- 
nal commerce.''  If  so,  congress  must  look  to  state  Inios  to  see  what  articles  are 
vendible  in  a  stale,  or  what  internal  commerce  is  authorized  by  it  within  its  limits, 
before  it  can  apply  a  general  icjrulation  of  commerce  to  that  state.  Or  does  the 
authority  of  congross  to  regulate  the  external  or  internal  state  commerce,  depend 
upon  the  manner  in  which  a  stale  e.xercises  its  own  power  of  regulating  its  internal 
commerce.''  If  so,  and  this  be  tiie  role  as  to  slaves  as  embraced  in  the  commercial 
power,  it  must  be  the  same  as  to  all  other  articles  embraced  in  the  same  power ; 
and  the  power  of  congress  in  regulating  commerce  among  the  states  will  depend 
upon  tlie  permission  of  each  stale  in  regulating  its  internal  commerce.  But  not 
only  was  this  nnil'ormity  in  rsgulations  of  cotinnerce  required  by  the  nature  and 
national  object  of  the  grant;  but  the  constitution,  in  the  same  article  in  which  the 
power  is  given  to  congress  to  regulate  commerce  among  the  states,  expressly 
declares,  that  "  JVw  preference  shall  be  given  by  any  regv.latiou  of  commerce  or 
revenue,  to  the  ports  of  one  slate  over  those  of  another."  Now,  if  Massachusetts 
and  Mississippi  both  forbid  by  law  the  introduction  of  slaves  as  merchandise,  and 
congress  enact  a  law,  or  lliis  court  make  a  decree,  by  virtue  of  which,  slaves  are 
forced  into  the  ports  of  Mississippi  for  sale,  but  cannot  be  forced  for  the  same  pur- 
pose of  sale  into  the  ports  of  Massacliusetts,  a  direct  preference  is  given  by  a  "  re- 
gulation of  comniene,"  to  tiie  ports  of  one  state  over  those  of  another.  It  is  a 
preference,  if  one  state  may  ba  permitted  to  exclude  from  introduction  for  sale 
witliin  lier  ports,  what  anotiier  slate  is  compelled  to  receive  for  sale.  It  is  a 
preference  which  is  asked  in  this  case,  to  follow  as  a  "regulation  of  com- 
merce," by  virtue  of  this  very  provision  in  the  constitution  itself,  and  in 
the  absence  of  all  congressional  enactments,  as  if  the  constitution  created  these 
very  preferences  as  to  commerce,  which  it  was  the  very  object  of  that  instrument 
to  prohibit. 

As,  then,  it  is  conceded   by   our  opponents,  that  the  laws   of  Massachusetts 
do  prohibit  the   introduction   of  slaves  in  her  ports,  and  are  constitutional,  the 
same   admission    must  follow   as   to  the   laws  of  Mississippi,  forbidding  the   in- 
troduction of  slaves  in  her  pons;  or  a  preference  will  be  given  by  the  conatitution 
B  8 


Iiv 


Groves  et  al. 


V.  Slaughter. 


i\    ■■ 


itself,  by  "  a  regulation  of  commerce,"  to  the  "  ports  of  one  state  over  those  of 
another." 

But  these  state  laws  are  not  regulations  of  commerce,  but  of  slavery.  They 
relate  to  the  social  relalions  which  exist  in  a  state ;  the  relation  of  master 
and  slave ;  they  define  the  "  persons"  to  whom  that  relation  shall  be  extended, 
and  hov/  and  under  what  circumstances  it  shall  be  further  introduced  into  the 
state." 

Each  state  has  exclusive  power  over  the  social  relations  which  shall  exist,  or  be 
introducbu  'vithin  her  limits,  and  upon  what  term  nd  conditions,  and  what  per- 
sons or  number  of  persons  shall  be  embraced  with  .1  these  regulations.  The  con- 
dition of  master  and  slave  is  a  relation  ;  it  13  universally  designated  as  the  relation 
of  master  and  slave  ;  and  whether  this  relation  shall  be  confined  to  the  slaves 
already  within  the  limits  of  the  state,  or  be  extended  to  others  to  be  introduced  in 
future,  is  a  matter  exclusively  within  the  power  of  each  state.  The  relation  of 
master  and  slave,  of  master  and  apprentice,  of  owner  and  redemptioner,  of  pur- 
citaser  and  convict  sold,  of  guardian  and  ward,  husband  and  wile,  parent  and  child, 
are  all  relations  depending  exclusively  on  the  municipal  regulations  of  each  state  ; 
and  over  which,  to  create  or  abolish,  limit  or  extend,  introduce  or  exclude,  -^r  regu- 
late in  any  manner  whatever,  congress  has  no  authority ;  and  congress  can  no 
more  say  that  a  state  shall  have  forced  upon  her  more  slaves  than  she  desires,  be- 
cause there  are  slaves  there,  than  that  a  state  shall  have  more  apprentices  than  she 
desires,  because  there  are  apprentices  within  hor  limits.  1  speak  as  a  question  of 
law,  and  not  as  instituting  any  moral  comparison  between  slaves  and  apprentices ; 
for  from  the  ranks  of  the  latter  have  risen  some  of  the  greatest  and  best  men,  and 
purest  patriots.  The  master  has  the  right,  not  created  by  the  constitution  of  the 
United  States,  or  to  be  regulated  by  it,  but  created  and  regulated  by  state  laws,  to 
the  services  of  the  slave  for  life,  the  time  prescribed  by  the  laws  of  the  state.  The 
master  has  the  right  to  the  services  of  the  apprentice  for  the  time  prescribed  by  the 
laws  of  the  state;  and  both,  if  t'le  state  permits,  may  assign  to  others  their  right  to 
these  services  under  the  directions  of  state  laws.  Can  therefore  the  right  to  the 
services  of  an  apprentice,  assignable  in  one  state,  he  ar>signed  in  another  state 
against  her  will,  with  the  introduction  of  the  apprentice  there,  because  the  services 
of  other  apprentices  already  there  are  assignable  in  that  state  .'' 

Under  the  laws  introduced  into  at  least  two  of  the  free  states  of  this  Union,  male- 
factors might  have  been  sold  for  a  term  as  long  as  life,  and  their  services  might  be 
assignable  for  life  by  'he  purchaser  at  public  sale,  to  any  third  p- rson  whatever; 
these  malefactors,  in  th^  languag-  of  the  constitution  of  the  Union  in  regard  to 
slaves,  were  "  persons  bound  to  service"  for  life,  and  their  services  for  life  assign- 
able by  their  masters;  and  yet  could  these  malefactors,  thus  assignable,  be  intro- 
duced into  and  be  lawfully  transferred  in  any  other  state,  against  her  laws,  hecau^^e 
other  malefactors  already  there  were  there  assignable  ;  yet,  a  malefactor  bound  to 
service  for  life,  purchased  by  his  master  at  public  sale,  and  liable  to  be  sold  by  his 
owner,  is  as  much  his  property  in  contemplation  of  law,  as  the  slave  can  be  of  his 
master.  He  is  in  fact  a  slave,  having  forfeited  his  liberty,  and  subjected  himself 
to  perpetual  services  by  his  crimes  ;  a  manner  in  which  the  most  rigid  moralists 
admit  that  servitude  may  be  justifiably  established.  Yet  such  slaves  cannot  be 
transported  and  sold  from  state  to  state  ;  though  by  the  very  constitution  of  Ohio 
and  other  of  the  free  states,  "  si.AVEnv"  is  expressly  authorized  therein,  "  for  the 
punishment  of  crimes."  It  does  not  exist  in  Mississippi  as  in  the  free  states,  only 
as  a  "  punishment  for  crimes,"  but  from  a  state  necessity,  equally  strong  and  pow- 
erful ;  the  necessity  of  self-government,  and  of  self-protection,  and  as  best  for  the 
security  and  welfare  of  both  races. 

Slavery  in  Mississippi  is  a  relation  of  perpetual  pupilage  and  minority,  and  of 
contented  dependence  on  the  one  hand,  and  of  jruardian  care  and  patriarchal 
power  on  the  other,  a  power  essential  for  the  welfare  of  both  parties.  With  us  the 
slaves  greatly  preponderate  in  numbers,  and  it  is  simply  a  question  whether  they 
shall  govern  us,  or  we  shall  govern  them ;  whether  there  shall  be  an  African  or 
Anglo-American  government  in  the  state  ;  or  whether  there  shall  be  a  government 
of  intelligent  white  free  men,  or  of  ignorant  negro  slaves,  to  emancipate  whom 


Groves  et  al.  v.  Slaughter. 


W 


would  not  be  to  endow  them  with  the  moral  or  intellectual  power  to  govern  them- 
tielvea  or  others,  but  to  sink  into  the  same  debasement  and  misery  which  murks 
tiieir  truly  unhappy  condition  in  tlie  crowded  and  pestilent  alleys  of  the  great  cities 
of  the  north,  where  they  are  called  free,  but  tliey  are  in  fact  a  degraded  caste,  sub- 
jected to  tlie  worst  of  servitude,  tlie  bondage  of  vice,  of  ignorance,  of  want  and 
•nisery.  And  if  such  be  theit  condition  where  lliey  are  lew  in  number  and  sur- 
rounded by  their  sympathising  fiiends,  how  would  it  be  vhere  there  are  hundreds 
of  thousands  of  them,  and  how  in  states  where  tliey  greatly  preponderate  in  num- 
ber P  Tlieir  emancipation,  where  such  is  llie  condition  of  the  country,  would  be  to 
them  the  darkest  abyss  of  debasement,  misery,  vice  and  anarchy.  And  yet  to  pro- 
duce this  very  result,  is  the  grand  object  of  that  party  in  the  north  that  demands  of 
congress  ♦o  regulate  the  slave  trade  among  the  states,  not  really  witii  the  view  to 
proliib  t  that  traffic,  for  it  is  r/ohibited  by  tlie  slave-holding  states,  but  with  an  ul- 
timate view  to  emancipation  as  an  incidental  consequtnce  from  the  action  of  con- 
gress over  this  subject.  And  here  let  me  observe,  that  an  adherence  by  tiie  south 
to  the  policy  in  which  t'  jy  are  now  united,  in  abolishing  as  states  the  inter-state 
slave  trade,  and  the  supjx  -t  of  that  power  and  of  that  policy  on  the  part  of  the 
states,  by  the  decree  of  thi  i  ".ourt,  and  tlie  denial  of  the  power  of  congress,  will  do 
much  to  secure  the  continuuiice  of  that  policy  and  to  silence  the  most  powerful  of 
the  batteries  of  abolition. 

Another  great  mistake,  maintained  in  the  north  by  this  party,  is  the  ground  now 
assumed  in  claiming  this  regulating  coiiuiierciul  power  of  congress,  that  by  the 
law  of  the  slave-holding  states,  slaves  are  merely  chattels  and  not  persons,  and 
therefore  are  subjected  to  the  power  of  congress  to  regulate  commerce  among  the 
states. 

If  it  be  intended  to  convey  the  idea  that  slaves  are  designed  to  be  deprived 
by  the  laws  of  the  south  of  the  quilities  and  character  of  persons,  and  of 
the  rights  of  human  beings,  and  to  degrade  tliem  in  all  things  to  thi  level 
of  chattels,  of  inanimate  matter,  or  of  the  brutes  that  perish,  it  is  a  radical 
error,  and  one  that  has  been  too  long  circulated  uncontradicted  by  the  abolitionists. 
In  some  of  the  states,  they  are  designated  as  real,  as  immovable  property.  Is  it 
therefore  designed  to  deprive  thein  of  the  power  of  locomotion,  or  to  convert  them 
into  a  part  of  the  land  or  soil  of  a  state.'  Far  otherwise.  Nor  does  their  designa- 
tion as  personal  property  convert  them  into  mere  chattels,  and  deprive  them  of  the 
character  of  human  l>eings.  In  the  South  this  is  well  understood,  and  no  such 
meaning  is  attached  to  these  terms,  but  in  tiie  North  they  are  seized  on  and  pervert- 
ed, as  if  slaves  were  regarded  and  trealeo  by  us  as  inanimate  matter.  No,  they  are, 
in  every  thing  essential  to  their  real  welfare,  regarded  as  persons  ;  as  such  they  are 
responsible  and  punishable  for  crimes  ;  ^s  such  to  kill  them  in  cold  blood  is  murder ; 
to  treat  them  with  cruelty  or  refuse  them  comfortable  clothing  and  food,  is  a  highly 
penal  offence;  as  such  they  are  nursed  in  sickness  and  infancy,  and  even  in  old 
age,  with  care  and  tenderness,  when  the  season  of  labour  is  past.  To  call  them 
chattels  or  real  estate,  no  more  makes  them  in  reality  land  or  merely  inanimate 
matter,  tlian  to  call  the  blacks  of  the  north  freemen,  makes  them  so  in  fact.  When 
the  constitution  of  Mississippi,  and  laws  iiade  in  pursuance  thereof,  require  that 
slaves  shall  be  treated  with  humanity,  commands  that  they  shall  be  well  clothed 
and  fed,  and  that  unreasonable  labour  shall  not  be  exacted,  are  these  provisions  ap- 
plicable to  a  mere  chattel  w'nch  the  owner  may  mutilate  or  destroy  at  pleasure? 
No.  Tho.  master  has  no  right  to  the  flesh  and  blood,  the  bones  and  sinews  of  any 
man  under  the  laws  of  the  south  ;  thl^  is  an  abolition  slander,  and  the  right  is  to 
the  services  of  the  slave,  so  declared  er.pressly  in  the  laws  of  the  south,  and  so  re- 
cognised in  the  constitution  of  the  United  States,  where  slaves  are  described  as 
"persons  bound  to  service  or  labour,"  and  so  unanimously  decided  by  the  highest 
court  of  our  state.  Jones'  Case,  Walker's  Ml.ss.  Rep.  83.  Tlie  right  of  the  ma:;ter 
is  to  the  services  of  the  slave,  a  right  accruing  only  by  virtue  of  the  law  of  the 
state,  and  upon  the  terms  therein  prescribed.  The  rights  of  the  maf'ir  and  slave 
are  reciprocal  under  the  la'"  .  of  the  south  ;  the  right  of  the  master  is  to  the  services 
of  the  slave  for  life,  and  the  right  of  the  slave  as  secured  by  law,  to  humane  and 
proper  treatment,  to  comfortable  lodging,  food  and  clothing,  and  to  proper  care  io 


m 


tvi 


Groves  et  al.  v.  Slaughter. 


infancy,  Bickness's  and  old  age.  These  are  the  wages  paid,  and  that  must  be  paid 
by  the  master  ;  and  if  the  doctrine  of  the  abolitionists  be  correct,  that  slave  labour 
is  dearer  than  free  labour,  then  higher  wages  are  thus  paid  in  the  south  than  in 
the  north  for  tlie  same  amount  of  labour  ;  and  that  it  is  much  higher  wages  than  is 
paid  to  the  toiling  and  starving  millinns  of  Europe,  no  candid  man  will  deny.  Let 
me  be  accused  of  making  no  comparison  between  slaves  and  my  countrymen,  the 
free  white  labourers  of  all  the  states.  No;  they  are  fitted  morally  and  intellectually 
Tor  self-government,  and  the  slaves  are  not  so  fitted ;  and  therefore,  even  for  tliei;' 
own  benefit,  must  be  controlled  by  otiie's. 

In  truth,  then,  slavery  is  a  condition  of  things;  iti:,  ■  lation,  the  relation  of  master 
and  slave,  the  status  ser/i  of  the  Roman  and  Gieci.'^  w,  so  designated  and  recog- 
nised as  a  relation  in  the  days  of  the  Jewish  Theocrac^  j'v  11  as  under  the  Christian 
dispensation.  By  all  these  laws  it  was  designated  a.i  a  nilation,  and  as  such  we  have 
seen  it  is  expressly  recognised  in  tiie  constitution  of  the  United  States,  where  slaves 
are  called  '^ peisims  held  to  service  or  labour."  How  far  they  shall  be  so  bound  is 
exclusively  a  question  of  state  authority,  and  over  which  the  congress  of  the  Union 
possesses  not  the  slightest  authority.  The  slalt's  and  the  states  only  can  say  what  per- 
sons shall  be  so  bound  toservice,and  when  liicy  shall  be  released,  and  to  what  persons 
this  relation  shall  be  extended,  and  whethci'  itshall  be  confined  to  those  slaves  already 
within  the  limits  of  a  state,  or  be  enlargeil  so  as  to  include  all  others  who  may  be 
introduced  within  their  limits  ;  and  it  is  the  abolitionists  who  must  wholly  deprive 
the  slaves  of  the  character  of  persons,  and  reduce  them  in  all  respects  to  the  level 
of  merchandise,  before  they  can  apply  to  tiieni  the  pow.  of  congress  to  regulate 
commerce  among  the  states. 

If  a  state  or  statjs  chose  to  degrade  not  malefactors  only,  but  a  large  portion  of 
the  present  white  or  coloured  race  to  the  name  and  condition  of  slaves,  could  they 
therefore  force  them  as  slaves  upon  other  states  of  the  Union,  under  the  power  of 
congress  to  regulate  commerce  .^  Has  congress  any  right  to  say  slavery  shall 
or  shall  not  exist  within  the  limits  of  the  stale  of  Mississippi ;  that  slaves  from  other 
itates  shall  or  shall  not  be  introduced  within  her  limits.''  Has  Virginio,  or  Penn- 
sylvania, or  any  other  state,  a  right  to  say  slavery  shall  be  abolished  or  eatablished 
within  the  limits  of  Mississippi,  and  slaves  shall  or  shall  not  be  imp(;rted  by 
her  citizen-s  for  sale  within  her  limits?  Each  state  must  legislate  for  itself  alone 
on  this  subject,  nor  has  congress  nor  any  oilier  stale  a  right  to  interfere  in  any 
manner  whatever.  And  if  Virginia  can  call  upon  congress,  or  upon  this  court,  to 
compel  Mississippi  to  receive  or  reject  any  or  all  of  her  slaves  for  sale,  the  states 
of  Rhode  Island,  Connecticut,  Pennsylvania,  New  Jersey,  Delaware,  Indiana  and 
Illinois,  can  compel  the  state  to  receive  all  tlieir  slaves,  still  amounting  under  the 
last  census  to  many  thousands,  notvvilh.-itandiiig  they  may  all  have  been  indoc- 
trinated for  years  on  the  principles  of  abolition,  surrounded  with  its  teachers  and 
disciples,  and  driven  by  force  into  our  state,  would  come  there  prepared  by  theory 
and  stimulated  by  revenge,  to  diffuse  their  emancipating  creed  among  our  slave 
population ;  to  render  them  forever  dangerous,  worthless,  sullen  and  discontented, 
and  to  excite  successive  insurrections  from  time  to  time  within  our  limits.  And 
yet  by  the  argument  of  our  opponents,  the  state  possesses  no  power  to  guard  her  citi- 
zens against  these  evils,  for  if  we  cannot  exclude  at  our  pleasure  the  slaves  of  all 
the  states,  we  can  exclude  the  slaves  of  no  one  of  the  states,  and  are  deprived  of 
the  power  of  self-preservation.  And,  let  me  risk,  are  not  the  slaves  whom  the 
doctrines  and  principles  of  abolition  have  now  reached,  upon  those  counties  of 
Maryland,  Virginia  and  K»-tucky,  bordering  for  more  than  a  thousand  miles  upon 
the  adjacent  states  of  Pennsylvania.  Oliio,  Indiana  and  Illinois,  unfit  for  a  residence 
as  slaves  in  Mississippi;  and  would  it  not  be  most  dangerous  to  permit  slave  traders 
to  drive  them  also  in  any  number  within  onr  limit?  Would  thev  not  contaminate 
our  slave  population,  and  diffuse  among  them  the  same  doctrines  and  principles, 
which,  from  these  bordering  counties,  have  already  peopled  Canada  with  a  colony 
of  thousands  of  runaway  slaves.  In  every  point  of  view,  the  power  to  prohibit 
this  traffic,  is  vital  to  the  security  and  welfare  of  the  people  of  Mississippi,  and 
cannot  be  abandoned  without  surrendering  the  right  of  self-preservation.  And  yet 
to  deprive  the  state  of  this  authority  has  been  called  by  our  opponents  a  great  con- 


Groves  et  al.  v.  Slaughter. 


Ivii 


servative  power  of  the  coniititution.  Conservative  of  what?  Of  the  power  of  the 
traders  in  slaves  to  drive  thousandH  and  hundreds  of  lliousands  of  dangerous  and 
discontented  slaves,  from  any  or  all  of  these  states,  as  merchandise,  within  our 
limits.  And  what  must  follow?  Who  will  dare  predict  the  result,  or  write 
the  prophetic  history  of  that  drama  which  would  soon  be  enacted  within  our 
borders. 

The  only  clauses  under  which  congress  can  legislate  as  to  slaves,  are  the  2d 
clause  of  9  sect.,  1  art.  of  the  constitution,  2  sect.  4  art.,  and  the  taxing  power;  in 
each  of  wliicli  they  are  spoken  of,  not  a.s  merchandise,  hut  as  jirrsvn.i.  It  is  as  per- 
.suHS  lliey  are  enumerated  under  the  census,  and  as  such  taxation  and  representation 
apportioned  according  to  three-iilths  of  their  numbers,  not  tlieir  rutue.  In  that 
section  they  are  described  as  "  three  fifths  of  all  other  persons;"  in  the.  ttth  section, 
tliey  are  designated  only  as  "persons;"  and  in  the  '2d  section  of  the  4tli  article, 
they  are  desciibed  as  "  persons  held  to  servi.;e  or  labour  in  one  state  under  the  laws 
thereof"  Yes,  "■««(/«•  the  laws  tl  a/;"  and  not  by  virtue  of  any  authority  of 
congress  to  force  tliem  within  the  limits  of  a  state.  If  slaves  are  merchandise 
merely,  under  the  power  oi  tlie  constitution  of  tiie  Union,  why  is  it  tl.ut  merchan- 
dise taken,  or  horses  or  cattle  escaping  from  any  one  state  into  any  other  stale, 
cannot  be  surrendered  under  the  laws  of  congress  upon  the  "claim  "  of  the  owner  ? 
Are  articles  r)f  merchandise  persons,  or  |)ersoiis  articles  of  merchandise,  in  view  of 
any  of  the  powers  granted  to  congress  in  these  provisions  ?  It  is  as  "persons"  they 
are  surrendered  in  one  state  when  fugitives  from  another;  and  it  is  as  "persons" 
they  are  enumerated  for  ap|)ortioning  taxiition  and  representation.  If  the  consti- 
tution had  slaves  in  view,  when  power  was  granted  to  regulnte  commerce  among 
the  states,  how  is  it  that  in  none  of  the  debates  on  that  clause,  either  in  the  con- 
vention which  framed  the  constitution  of  the  Union,  or  in  the  stale  conventions 
which  ratified  it,  is  there  the  slightest  allusion  to  the  existence  of  any  such  power? 
The  journal  of  the  convention  shows  that,  this  clause,  to  regulate  conipierce  with 
foreign  nations  and  among  the  states,  was  projiosed  by  Charles  Pine'-  of  South 

Carolina,  and  that  it  was  adopted  as  proj'osed  by  him,  with  the  addition  oi  the  words, 
as  to  the  liidiun  Tribes.  Did  South  Carolina,  and  did  Mr.  Pinckney,  intend  to  give 
thereby  this  supreme  and  exclu.=ive  power  under  this  article  to  congress  as  to 
slaves?  No!  T!ie  votes  of  Mr.  Pinckney  and  of  South  Carolina  in  that  convention, 
show  conclusively  that,  that  slate  and  Mr.  Pinckney  were  opposed  to  granting  to 
congress  any  power,  even  over  tiie  African  slave  trade,  even  under  specified  and 
limited  provisions  on  that  subject  in  a  different  article.  Fortunately,  Mr.  Pinckney 
has  lived  to  declare  his  meaning,  and  that  of  llie  convention,  in  a  speech  made  by 
him  in  congress  on  the  Missouri  qiiesticm,  in  1820,  and  reported  in  18th  vol.  Niles' 
Register,  p.  352;  when,  as  a  surviving  witness  of  the  views  and  deliberations  of 
the  convention  in  which  he  had  acted  so  prominent  a  part,  he  bears  testimony,  spe- 
cifically, to  this  very  point,  that  under  no  clause  of  the  constitution  was  any  such 
power  granted  to  congress.  He  Kays:  "  I  have,  sir,  smiled  at  the  idea  of  some 
gentlemen  in  supposing  that  congress  posse^-ed  the  power  to  insert  the  amend- 
ment, from  that  which  is  given  in  the  constitimon  to  regulate  comviercc  between  se- 
veral stairs;  and  some  have  asserted  tint,  under  it,  they  not  only  have  the  power 
to  iniiibit  slavery  in  Missouri,  but  even  to  prevent  the  viisfration  of  slaves  from  one 
slate  to  another — from  Marijlanil  to  Viriri.riia.  The  true  and  peculiarly  ludicrous 
manner  in  which  a  gentleman  from  that  state  lately  treated  this  part  of  the  subject, 
will,  no  doubt,  induce  an  abandonment  ol"  lUla  prctenued  right;  nor  shall  I  stop  to 
answer  it,  until  gentlemen  can  convince  me  that  migration  does  not  mean  change 
of  residence  fro, ■!  one  country  or  climate  to  another ;  and  that  the  United  States 
are  not  one  country,  one  nation,  or  one  people  :  if  the  word  does  mean,  as  I  con- 
tend, and  we  are  one  people,  I  will  then  ask,  how  is  it  possible  to  migrate  from 
one  part  of  a  country  to  another  part  of  the  same  country?  Surely,  sir,  when  such 
straws  as  these  are  caught  at  to  support  a  right,  the  hopes  of  doing  so  must  be  slen- 
der indeed." 

We  have  then, here,  at  least  one  positive  and  uncontradicted  witness  in  our  favour, 
and  that  the  very  man  who  proposed  this  clause  in  regard  to  this  power  of  congress 
to  regulate  commerce.    Did  South  Carolina  intend,  in  proposing  this  power,  lu  give 


■■vtkv 


I  E  11 


I  \ 


'  m 


p. 

I 


Iviii 


Groves  el  al.  v.  Slaughter. 


to  congress  immediate  authority  to  prevent  the  transportation  of  slaves  from  all 
other  states  to  that  state,  when  she  was  tiieii  even  opposed  to  the  specific  and  pros- 
pective power  to  be  exercised,  at  the  end  of  twenty  years,  as  to  slaves  from  Africa? 
South  Carolina  has  nlwuys  viewed  juch  a  power  ns*  is  now  claimed  for  congress  in 
regard  to  slaves,  with  absolute  abhorrence;  yet,  by  a  new  interpretation,  this  power 
is  given  by  implication  from  that  vi-ry  clause  in  the  constitution  of  the  Union, 
which  was  proposed  in  the  convention  by  South  Carolina,  and  adopted  on  her  mo- 
tion. The  source  from  which  the  power  emanated,  independent  of  the  uncontra- 
dicted testimony  of  Mr.  Pinckney,  who  jiropoiied  this  clause,  ought  to  be  ccmclu- 
sive  with  every  unprejudiced  n;ind,  that  no  such  authority  was  designed  to  be 
thereby  vested  in  congress.  No  one  can  believe  that  South  Carolina,  or  the  other 
slave-holding  states,  would  ever  have  conseiiled  to  the  constitution,  if  by  that  in- 
strument this  su|)reme  and  exclusive  power  had  been  therein  granted  to  congress  ; 
and  it  would  be  a  fraud  on  those  stales,  a  fraud  upon  the  constilulion,  a  fraud  in 
morals  as  well  as  law,  now  to  interpolate  by  o  new  construction,  at  the  end  of 
half  a  century,  a  power  which  we  all  know  would  never  have  been  granted  by  at 
least  six  out  of  the  twelve  states  which  t'niiiicd  the  constitution. 

In  9  Wheat.  191,  Chief  Justice  Mirslmll  JiMtlares:  "That  commerce,  as  the 
word  is  used  in  the  constitutiim,  is  a  unit;"  but  it  is  a  cipher,  if  dependent  oi» 
state  regulations  as  lo  internal  cummercf,  or  state  regolation.'f  as  to  what  is  property 
or  merchandise  ;  or  if  not  a  cipher,  and  HillVrent  regulations  as  to  the  same  articles, 
or  operating  differently  in  the  several  slates  can  be  made  by  congress,  it  is  not  a 
unit,  but  separated  into  as  many  fractions  as  there  are  slates  or  sections.  Chief 
Justice  Marshall  tells  m:  That  the  c<iiriiuerce  designed  to  be  regulated  by  con- 
gress, extends  to  all  "thc-e  internal  concerns  which  uft'ect  the  slates  grncrally,"  9 
WJieat.  195  ;  but  as  viewed  by  our  opponents,  it  is  not  confined  to  that  c(mimerce 
which  affects  the  stales  generally,  but  extuiuis  to  that  which  affects  only  particular 
states  or  sections,  and  not  the  states  generally,  aiul  might  extend  only  to  two  states 
out  of  twenty-six,  if  there  were  but  two  slave-holding  states  in  the  Uni(m.  But 
again,  at  page  196  of  9  Wheaton,  Chief  Justice  Marshall  expressly  declares  the 
power  lo  regulate  commerce  among  the  states,  to  apply  to  the  one  slate  in  which 
the  voyage  by  land  or  water  begins,  through  any  other  state,  and  into  still  another 
state,  in  which  the  voyage  terminates;  and  he  instances  the  regulation  of  trans- 
portation between  Baltimore  and  Providence  "  by  land,"  which  must  pass  into  nnd 
through  at  least  seven  states,  and  that  the  power,  he  says,  is  to  enforce  this  passage 
of  these  articles  of  commerce  throui>li  nil  these  stiilrs  What  then  follows  .-'  That 
a  trader  in  slaves  purchased  at  Baltimore  to  be  sold  in  Wheeling,  Virginia,  may 
transport  them  in  chains  through  Pennsylvania,  the  only  practicable  route  by  land, 
to  Wheeling,  and  no  law  of  Pennsylvania  can  forbid  it.  Again,  a  trader  in  slaves, 
purchased  in  Wheeling,  Virginia,  for  Missouri,  may  drive  ther>i  through  Ohio,  In- 
diana, and  Illinois;  or  from  Maryland  for  Missouri,  by  taking  them  through  New 
York  and  the  Lake  route  across  to  that  stale  ;  or  he  might  take  them  by  sea,  from 
Baltimore  f"-  Missouri,  to  Boston,  then  to  pass  them  through  Massachusetts,  by 
the  rail  road  to  Buffalo,  for  the  western  route.  The  slave  trader  might,  in  this  way, 
if  slaves  are  embraced  in  the  commercial  power,  encamp  them  in  chains  at  Boston, 
Lexington,  Concord  or  Bunker  Hill,  and  drive  them  on  to  their  destined  market, 
and  no  state  law  can  prevent  it;  and  this  run  he  done  now,  without  any  act  of  con- 
gress, and  the  state  could  not  prevent  it.  This  the  abolitionists  would  regard  with 
horror  and  dismay  ;  but  to  all  this  they  subject  their  own  states,  nay,-  as  will  be 
shown,  they  establish  not  only  the  slave  tiade  but  slavery  there,  in  their  efforts  to 
force  their  doctrines  upon  the  southern  states. 

At  page  196,  9th  Wheaton,  Chief  Justice  Marshall  says  :  This  power  in  con- 
gress as  to  commerce,  is  "  supreme  and  exclusive  ;"  and  that  the  power  to  regulate 
"is  to  prescribe  the  rule  by  which  commerce  is  to  be  governed."  At  page  197,  he 
says  the  power  to  regulate  "  commerce  with  foreign  nations,  and  among  the  seve- 
ral states,  is  vested  in  congress  as  absolutely  as  it  would  be  in  a  single  government." 
So  far  as  regards  then  this  commercial  power,  the  court  distinctly  declare,  that  the 
government  of  the  Union  is  to  be  viewed  as  a  single  government ;  that  state  bounds- 


Grotea  et  al,  v.  Slaughter. 


lix 


riei,  and  state  jurisdiction,  and  the  states  theniHelves  disappear,  so  far  as  this  power 
is  concerned,  and  that  so  fur,  tliu  nation  is  a  "  Unit." 

The  aiitliority  tiieii  i)\'  Maatmchui^vitH  (liHuppuars  as  regards  the  exercise  of  this 
commercial  power  l)y  this  siiiirle  government.  Si»e  ceuseH  to  exist  as  a  separate 
stale,  HO  far  as  tiiis  power  is  oonci'rned,  and  elands  su  fur  us  rii>firits  tlir  power 
towards  tiiis  single  governuient,  in  tiie  same  relation  in  which  a  counly  stands  to- 
wards a  slate.  Huch  is  the  decision  ot'  tiie  conrl  in  the  very  case  upon  wliicii  our 
opponents  rely.  As  then  the  power  to  ri'ifuliite  tiie  sale  and  transportation  of 
slaves  from  state  to  state  is  insisted  by  our  opponents  to  be  a  commercial  power, 
the  states,  by  this  decision,  so  far  cease  to  exist  as  states;  their  separate  state 
jurisdiction  and  boundaries  so  f.ir  disa|)pear  ;  the  stales  become  a  "  Unit,"  and  this 
povver  operates  in  and  amon;r  ail  the  slates,  as  much  as  if  the  slate  t^overnments 
had  ceased  to  exist.  What  llien  becomes  of  the  law  of  Massachusi^tts  prohibiting 
the  slave  trade  there,  or  the  introduction  from  oilier  slates  of  slaves  for  sale  there  as 
merchandise,  when  brought  in  coiilli('l  with  this  commercial  power.'  Why,  not 
only  would  the  sale  be  valid,  and  transportation  through  the  stale  valid,  by 
authority  of  an  act  of  congress ;  but  noin,a.i  this  moviiiit.  on  the  princijile  con- 
tended for  by  our  opponents,  and  herelolbre  adopu-d  by  this  court,  that,  that  com- 
merce which  congress  loaves  free  anil  unforbidden,  it  authorizes  as  much  as  by  an 
express  law ;  the  slaiutes  of  Massacliusells  are  uuconstilulional,  and  slaves  can 
now  be  transported  from  any  stnle  into  Massacliuselts,  and  '-old  there,  or  carried 
through  there,  for  sale  in  some  other  state  lo  wliicli  they  are  uestiiied,  these  laws 
of  the  state  being  expressly  declari^l  by  (/liief  Justice  Marshall  lo  be  void,  if  the 
commercial  power  extends  to  th's  ruse;  because  the  siale  "  is  exercising  the  very 
power  that  ia  granted  lo  congress,  and  is  doing  the  very  thing  which  congress  is 
authorized  to  do."  9  Wheat.  l()i>— 201).  And  al  page  20!),  the  court  say  :  "  To 
regulate,  implies  in  its  niiiure,  full  power  over  the  thing  to  be  regulated  ;  it  ex- 
cludes, necessarily,  the  action  of  all  others,  thai  would  perform  the  same  operation, 
on  the  same  thing.  That  regulation  is  designed  for  the  entire  result,  applying  to 
those  parts  which  remain  as  they  were,  as  well  as  lo  those  which  are  altered.  It 
produces  a  uniform  wliolc,  which  is  as  much  disturbed  and  diTanged  by  chaniririg 
what  the  regulating  power  designs  lo  leave  untouched,  as  that  on  which  it  has 
operated." 

The  exercise  of  this  power  then,  as  well  as  the  failure  to  exercise  it,  by  leaving 
free  what  is  not  reglilaled,  "  jiroduces  a  uniform  whale,"  which  the  state  law  can- 
not disturb;  and  yet  this  uiiiforiiiily,  thus  reijuired  in  nil  the  stales  by  the  mere 
absence  of  congressional  legislation,  is  coiii|)ietely  subverted  as  ri;gards  these 
slaves,  which  are  embraced,  il  is  said,  in  the  commercial  power,  and  that  commerce 
in  them,  which  congress  alone  could  ri-gulate,  and  whicli  it  does  regulate  by  leav- 
ing free  as  to  all  the  stales  where  il  diies  not  legislate,  is  in  jioinl  of  fact  regulated 
at  its  pleasure  by  each  stale  of  tiie  Union,  and  is  dependent  entirely  on  state  laws. 
This  power,  we  are  told,  is  not  now  asked  to  be  called  forth  to  oppress  the  slave- 
holding  slates  wf  the  Union;  but  the  authority  once  established,  it  will  recoil  upon 
the  free  stales  with  a  foice  and  power  which  was  little  dreamed  of  by  the  aboli- 
tionists; and  will  avail  to  establish  slave.ry  and  the  sale  of  slaves  from  other  slates 
in  every  slate,  and  the  trallic  in  slaves  in  and  through  all  the  slates  by  the  mere 
inaction  of  congress.  ]^Jay,  if  the  argument  of  oar  opponents  be  correct,  it  is 
established  and  exists  at  this  moment. 

At  page  224,  9th  Wheaton,  the  court  declare,  that  the  constitution  originated  in 
the  Virginia  resolutions,  which  they  s.iy  were  intended  to  produce  among  the 
states  "  an  uniform  system  in  the  commercial  regulations;"  and  ]Mr.  Madison's 
resolutions,  which  led  to  that  'neasure,  declare  the  object  to  be,  as  regards  all  the 
states,  "to  require  uniformity  in  the  commercial  regulations,"  and  prevent  the 
states  adopting  "  partial  and  separate  regulations."  These  regulations  then  must 
be  uniform  ;  this  was  the  very  object  in  granting  the  power,  and  the  total  impos- 
sibility of  such  uniformity  as  to  slaves,  shows  that  the  power  was  never  intended 
to  extend  to  them ;  and  surely  Virginia  never  designed  to  include  them  in  the 
commercial  power. 

By  the  constitution,  the  rights  that  were  delegated  to  congress,  were  delegated 


m 


I 


; 


Ix 


Groves  et  al.  v.  Slaughter. 


ipiiij 


by  all  the  states ;  the  rights  thnt  were  prohibited  to  the  states,  were  prohibited  tu 
all  the  state*  ;  and  the  rights  that  were  not  delegated  or  prohibited,  were  reserved 
to  all  the  states  :  but  by  the  position  of  our  opponents,  the  right  to  reguhite  the 
transportntion  and  siile  of  shives  from  state  to  Ktate,  was  granted  to  congreHS  only 
by  the  slave-holding  states;  the  prohibition  to  that  rt-guiiition  by  u  stale,  was  a 
prohibition  only  to  the  slave-holditig  states,  and  the  reserved  power  over  the  regn- 
lation,  was  a  power  reserved  by  the  non-slave-holding  and  not  by  the  slave- holding 
states  :  and  yet  they  all  entiTfd  the  c'liifederacy  as  equals,  and  sovereigns,  in  every 
respect;  and  all  granted,  surrendered,  and  retained  Ihe  same  power.  Up  in  these 
terms  only  of  perfect  equality,  and  of  subjection,  or  exemption  of  all  the  states 
from  the  national  power,  was  the  coiiMtitution  framrd;  and  to  maintain  the  distinc- 
tion now  assumed  between  the  slive-holding  and  non-slave-holding  states,  by 
which  the  last  ore  sovereign,  and  the  first  are  subject  states  on  this  question,  is  tf» 
place  the  former  in  an  attitmie  of  degradation,  to  which  no  one  of  these  states  ever 
would  have  assented  in  forming  the  constitution.  No  '  The  constitutir)n  of  the 
Union  was  one  constitution,  witli  one  uniform  operation  and  construction  in  all 
the  states,  and  all  its  powers  were  to  be  enforced  in  all  or  none  of  the  states  ;  and 
not  two  constitutions,  with  two  constriictions,  one  for  the  Nortli.and  the  other 
for  the  South,  (^hanging  with  geoirrnphical  limits,  lines,  and  sections  If  it  be  a 
constitution  to  be  enforced  by  the  Northern  against  the  Southern  states,  rendering 
nugatory  their  laws  upon  this  question,  unless  they  will  abandon  their  local  insti- 
tutions, and  conform  their  policy  in  this  respect  to  the  wll  of  the  North,  whilst 
the  same  powers  of  the  government  are  to  Iiave  no  operation  within  the  limits  of 
the  Northern  states;  the  constitution  would  be  a  memorial  of  fraud  and  treachery, 
and  wnuld  soon  be  broken  into  as  many  fragments  as  there  arc  states  or  sections 
of  the  Union. 

The  whole  power  as  to  regulations  of  commerce  being  granted  by  each  and 
every  state,  and  vested  by  them  exclusively  in  congress;  no  state  cnn  legislate  or 
exercise  any  authority  over  the  subject;  and  there  can  be  no  discrimination  be- 
tween the  relative  powers  in  this  respect  of  the  several  states  or  sections  of  the 
Union. 

At  page  227,  9  Wheaton,  tli  court  say,  that  this  provision  as  to  commerce 
"carries  the  whole  power  and  leaves  nolhinff  far  the  state  to  acton;"  that  it  is 
"  the  same  power  which  pririfnisltj  existed  within  the  stales,"  which  included  the 
power  of  prohibition  ;  that  it  is  an  authority  as  to  commerce,  "  to  limit  or 
restrain  it  at  pleasure."  They  expressly  declared,  that  it  extended  to  an  "  em- 
bargo," which  they  had  previously  defined  to  be  a  "  prohibition,"  and  as  a  "  branch 
of  the  commercial  power."  If  then  this  power  extends  to  this  case,  this  very 
decision  so  much  relied  on  by  our  opponents,  proves  that  if  congress  may  reyulatc, 
it  may  "limit  or  restrain  at  pleasure,"  "embargo,"  or  "prohibit"  this  traffic; 
this  being  the  same  power  pre-existing  in  the  states,  and  wholly  taken  from  them, 
and  vested  exclusively  in  the  nation  as  a  "  single  government."  How  then  can 
any  state  exempt  herself  from  the  operation  of  this  power,  by  declaring  such 
"  subjects  of  commerce"  as  were  within  this  clause  of  the  constitution,  and  traffic 
in  which  was  left  free  by  the  only  power  which  can  regulate  it,  shall  not  be 
subjects  of  commerce  within  her  limits,  and  shall  not  be  imported  or  sold 
there  in  .-" 

At  page  228,  9  Wheaton,  the  court  say,  speaking  of  acts  of  congress  on  this 
subject :  "  Were  every  law  on  the  subject  of  commerce  repealed  to-morrow,  all 
commerce  would  be  lawful  ;"  and  there  being  no  act  of  congress  declaring  this 
traffic  unlawful,  from  the  argument  of  our  opponents,  it  follows,  that  this  com- 
merce in  slaves  between  the  states  is  now  lawful  in  all  the  states  of  the  Union.  It. 
follows  also,  that  there  being  no  power  either  in  the  government  of  the  states  of 
the  Union  to  prohibit  this  slave  trade  between  the  states,  it  is  consecrated  and  pre^- 
petuated  by  the  constitution. 

The  whole  difficulty  is  solved  by  Mr.  Madison,  who  tells  us  in  the  54th  number 
of  the  Federalist,  page  236,  that  the  case  of  slaves  under  the  constitution  was  "  a 
peculiar  one;"  and  that  the  constitution  "regards  them  as  inhabitants,  but  as 
debased  by  servitude  below  the  equal  level  of  free  inhabitants." 


A 


i-    \ 


Groves  et  al.  v.  Slaughter. 


Ixi 


Did  then  the  conntitution  of  the  United  StateH  design  to  give  to  congresM  power 
to  regulate  coninierne  in  "  inlmbitantH,  "  in  and  l)etwt!en  the  stateB .''  To  riffulatCf 
this  court  said,  nieanit  "  to  preHcribe  tlie  ruIeH  by  wliich  cornnieice  is  to  be 
governed,"  mid  lliat  "  to  ri'j,'ulate  implit>«  full  power  over  the  tiling  to  be  re- 
gulatt^d."  Tlien  tlie  irainurH  of  tlie  cuiiHtitution,  aithoui^lt  a  majority  were  oaid 
to  liave  been  so  niiicli  opposed  to  slavery,  that  they  would  not  and  did  not 
put  the  word  slavi'  in  that  instrument,  yet,  by  the  jiosition  on  wliioh  our  op- 
ponents  rely,  congress  was  to  prescribe  tlie  rules  and  the  only  rules  by  which 
comtnerce  in  slaves  between  the  states  should  be  refrulateil  ;  that  they  were  to 
authorize  and  direct  this  trallic,  and  that  they  were  to  keep  open  the  markets  in  all 
the  slave-holding  stales  against  their  consent  for  this  trafHc  ;  or,  in  other  words, 
that  congress  was  to  piTpetuate  the  slave  trade  between  the  states,  and  render  it 
eternal  in  all  the  slave-holding  states  of  the  Union.  That  congress  were  ever 
intended  to  take  the  charge,  nnich  less  the  exclusive  charge  of  the  slave  trade 
between  the  states,  and  regulate  it  at  their  pleasure,  was  :i  power  never  intended 
to  be  granted  in  the  constitution.  But  if  it  be  a  power  to  /iirjntiiii/r,  it  nuif^t  be  a 
power  to  (Icxtroij,  and  if  not  to  destroy,  at  least  to  prescribe  ail  the  rules  upon  which 
the  trade  is  to  be  conducted.  Who  is  to  judge  of  these  rules  ?  Congreh.s,  and 
congress  only,  by  the  argument  of  our  oppotients,  have  the  full,  supreme,  and 
exclusive  power.  They  may  then  say,  how  and  by  whom  slaves  shall  be  taken 
from  stale  to  slate,  and  in  what  number:*,  and  of  what  age  and  sex,  and  how  and 
to  whom  they  shall  be  sold  by  the  importer,  and  on  what  conditions,  and  in  fact 
regulate  every  thing  that  relates  to  the  transportation  and  sale.  Tlie  power,  if  it 
exists  at  all,  is  plenary;  and  in  the  laiigiinge  of  this  court,  in  12  Wlieaton,  "  The 
power  does  not  depend  on  the  degree  to  which  it  may  be  exercised,  if  it  may  be 
exercised  at  all,  it  must  be  at  the  will  of  those  who  held  it."  Who  then  shall  Mt! 
bounds  to  this  unlimited  power,  who  shall  restrain  it — the  states  '  Why.  we  have 
seen  that  they  have  surrendered  all  jiower  over  the  subject,  and  that  it  is  vested  as 
completely  in  congress  as  if  this  were  a  "  siiii^lc  guri'rnincnt." 

We  are  then  a  single  government,  by  the  argument  of  our  opponents,  as  regards 
the  slave  trade  between  the  states,  and  every  vestige  of  state  authority  is  abolislied. 
On  the  9th  of  January,  18;{8,our  able  and  distinguished  opponent  (Mr.  Clay),  read 
in  his  place  in  the  senate,  and  sustained  by  a  speech,  the  ibllowiiiii'.  iiiiiong  other 
resolutions  :  "  Resolved,  that  no  power  is  delegated  by  the  constitution  to  congress, 
to  prohibit,  in  or  between  the  states  tolerating  slavery,  the  sale  and  removal  of 
such  persons  as  are  held  in  slavery  by  the  laws  of  those  states." — Nat.  Intelli- 
gencer, 18,  January  7, 1838.  Here  it  is  conceded  that  this  government  cannot  pro- 
hibit this  trallic.  But  why  not,  upon  the  case  so  much  relied  on  by  our  opponents.' 
It  is  true  congress  can  impose  no  tax  on  exports  from  any  state,  but  tiiis  the  court 
say,  is  an  excepli'^"  iVoin  the  taxing  i>ower,  and  that  the  power  to  tax  imiiorts  is 
entirely  distinci  from  that  to  regulate  commerce.  Although  then  congress,  may 
not  tax  expo'ts  from  the  states,  by  the  authority  of  this  case,  they  may  prohibit 
without  a  ta.s.  Wlmt  is  an  embargo,  but  a  prohiliition,  not  a  tax:  and  in  this  case 
the  court  say,  that  an  embargo  is  an  "universally  acknowledged  powir"  nf  con- 
gress; and  they  expressly  dechire,  that  it  is  a  commercial  power.  As  then  tlie  pro- 
hibition to  tax  exports  from  any  state,  is  a  limitation  only  on  the  taxing  power, 
and  affects  and  liniits,  as  the  court  expressly  dechires,  in  no  way  the  power  to 
regulate  commerce  among  the  states,  congress  miiy,  if  tl  e  position  of  our  opponents 
be  sound,  and  this  is  a  case  within  the  cuinmereial  power,  lay  an  embargo  on  this 
slave  trade  between  the  states,  or  in  other  words  prohibit  it  altogether.  Grant 
but  tiie  first  position  of  our  opponents,  and  tlie  case  on  which  they  rely,  and  that 
the  commercial  power  extends  to  the  sale  and  transfer  of  slaves  from  state  to  state, 
and  all  the  consecpiences  above  stated  must  follow.  But  if  neither  tliegoverriments 
of  the  states,  nor  of  the  Union,  possess  this  power  to  prohibit  this  trade,  the  power 
must  be  annihilated,  and  this  without  any  grant  of  the  power  to  congress,  or  pro- 
liition  to  the  states,  and  although  it  is  admitted  to  have  existed  in  every  state,  be- 
fore the  adoption  of  the  constitution.  But  the  concession  that  congress  cannot 
prohibit  this  trade,  admits  the  whole  case,  by  conceding  that  it  is  not  within  the 
meaning  of  the  clause,  which  authorizes  congress  to  regulate  commerce.  Why 
P 


h 


IXII 


■n 


•■'  i 


Groves  et  al.  v.  Slaughter » 


then  nmy  not  the  iitat«i  PXprciRt*  thin  powtT?  Tliey  are  no  whern  proiiibited  to 
••xerciHH  it  in  any  diinnu  of  thn  uonHtitntion,  unloHH  it  be  an  an  intt-n'm-e  from  the 
authority  of  coiiKroxri  to  reirulat(t  coininerce.  Now,  'A'  thai  inference  foiU)WM,  it 
would  hi*  hecauHo,  in  th«'  liiuKUiiirn  of  this  court,  H  VVIifat.  !!)}»,  "  I  he  Htate  is  t-xer- 
niHin)r  the  verij  fioirfr  \hni  \h  gruixUrd  to  con^rcMH  ;"  but  if  thia  prohibition  of  the 
importation  of  nlavort  lit*  neitlicr  the  "  very  power"  tliat  in  ^raiiU'il  to  con^^reao,  nor 
inrlmltMl  in  that  power,  iiow  ix  tiie  state  prohibited  from  exerciHinf  itP  It  is  not 
lirohlliitrd  to  the  t/tafr,  unleMH  inehiih-d  in  tlie  coinnicrcial  power  of  foiijfreHH  ;  it  is 
not  deleirateil  to  ooni^re.'iH,  unietm  in  that  claiiHe  ;  iiriice,  tlien,  hcin^  a  power  neitlier 
deU!);ate(i  to  coni;reHM,  nor  pr(ihil)iled  to  the  Htaten,  it  i^4  by  the  conNtitutioti  expressly 
rcrterved  to  the  Htale  in  which  it  pre-existed  before  the  coiislilution  wan  framed. 

Uut  airain,  this  power  to  refruiate  c.ninierce  is  an  active  power,  a  power  "  to 
prt'Hcribe  the  ruU-s"  liy  which  lliat  coiiimerire  may  lie  conducted,  and  to  enforce 
liio.so  riili'H;  but  here  it  is  Haiu  no  ruii-  can  be  |irescribed  by  coiiirress  on  tiiiB  sub- 
ject, or  enforced,  no  law  can  lie  pasHid  by  conifreHH,  to  re^'iilale  thin  trade,  but 
nevertlielesH,  that  the  Htales  cannot  reirnlaie  nur  prohiliit  tliiti  trade,  because  con- 
jjress  has  the  exclusive  power.  This  is  a  strange  contradiction,  congress  cannot 
legislate  as  to  this  case,  althoufrh  it  may  as  to  all  otiier  (rommerce  among  the  states  ; 
but,  nutwitliNtanding,  the  state  law  i.s  void,  lieenuMe  the  power  i.s  vetted  in  congress. 
The  power  is  vested  in  coiigresH,  but  neviTlheb'ss  it  has  no  power  to  pass  any  law 
on  the  subject,  liut  who  is  it  that  has  the  power?  Tiiu  constitution  says  con- 
);ress  shall  have  the  power  to  regulate;  and  yet  it  is  contended  congress  have  no 
power  to  regulate  this  trade,  but  neverlheles,s  the  state  law  is  void,  in  the  absence 
of  all  power  in  congress  to  legisbile  on  the  subject.  It  is  rendered  then  njuilirial 
puwer,  to  he  put  in  lorco  by  this  court,  and  not  by  leginlalion,  and  yet  have  the 
judiciary  any  power  to  regulate  commerce  among  the  slates.'  It  is  a  sullen,  dog  in 
the  manger  power,  that  can  neither  act  itself,  nor  peiinit  action  by  any  other  au- 
thority. In  the  32d  number  of  the  Federalist,  Mr.  Ilaniilton,  who  was  the  boldest 
()l>ponent  of  state  power,  tells  us  there  are  but  three  cases  under  tlit!  constitution, 
in  which  a  state  cannot  exercise  a  power,  "  where  the  c(ui8liUili<oi  in  npriss  terms 
granted  an  e/clusin;  authority  to  the  Union.  Where  it  granted  in  one  instance  an 
authority  to  the  Union,  and  in  another,  pr<d>ibited  the  states  from  exercising  the 
like  authority  ;  and  where  it  granted  an  authority  to  the  Union,  to  which  a  similar 
authority  in  the  states  would  be  absolnttdy  and  totally  ci.titruilirlonj  and  rrpvsr- 
nant."  It  is  conceded  that  there  is  no  rri>ris.i  grant  ol'  rirhittim  power  to  congress, 
or  ej/iTcss  prohibition  to  the  stales;  but  it  ia  contended  tiiat  the  piohibition  tif  the 
state  power  follows  in  this  case,  because  its  exeicise  would  be  the  exercise  of  the 
same  power  granted  ex'"-lusively  to  congress;  and,  therefore,  the  possessinn  of  such 
a  power  by  the  state  would  bo  "  absolutely  and  totally  contradictory  and  rejiug- 
iiiinl"  to  the  possession  of  the  lame  power  by  congress. 

This  ia  the  argument  in  favour  of  this  implied  prohibition  on  state  authority  ; 
but  how  is  the  power  of  a  slate  to  prohibit  this  tralllc,  "  absolutely  and  totally  con- 
tridic.lory  and  repugnant"  to  the  possession  of  the  same  power  by  congress,  when 
congress  can  make  no  such  prohibition  .'  Congress  cannot  prohibit,  then  there  is  no 
repugnance  in  a  slate  prohibition.  It  is  conceded  the  power  existed  in  each  state, 
prior  to  the  adoption  of  the  constitution ;  that  instrument,  it  is  admiltt'd,  grants  no 
such  prohibitory  authority  to  congress;  it  prohibits  the  power  no  where  to  the  slates; 
how  then  have  the  states  lo.st  or  alienated  the  power?  The  power  to  pridiibit,  or 
limit,  or  restrain  the  admission  of  slaves  into  any  state,  is  conceded  not  to  be  vested 
in  congress,  then  it  must  be  vested  in  the  states,  or  the  power  is  annihilated;  not 
by  a  grant  of  the  power  to  congress,  not  by  a  prohibition  to  the  statet,,  but  by  some 
new  rule  of  interpretation,  under  which,  hy  a  conjectural  implication,  the  power 
has  disappeared,  without  a  grant,  or  without  a  jirohibilion.  But  these  are  the  only 
modes  by  which  a  pre-existing  state  power  can  be  annihilated. 

By  the  lOth  article.  Amendments  of  the  Constitution,  "the  powers  not  delegated 
to  the  United  States  by  the  constitution,  nor  prohibited  by  it  to  the  states,  are  re- 
served to  the  states  respectively,  or  to  the  people."  This  power  then  never  having 
been  either  delegated  to  the  United  Slates,  or  prohibited  to  the  states,  is  one  of 
the  reserved  powers  of  the  states,  unless  this  amendment  can  be  rendered  a  dead 


Crores  et  at.  p.  Slau/ifhtrr. 


Ixiii 


letter,  by  a  bron(ii>r  cnnitruction  tlinn  any  livretofrre  niniiitnined,  even  by  the  bobl 
est  uilverNiirirM  ol'  Mtuti>  initliorily,  and  tlii'  iiioHt  latitiidiiiniiii  int<>r|>r(>tiTM  of  tliv 
coiulituijoii.  Nor  wuM  tlii-ri>  any  ncrcMHity  or  |iro|)riety,  tliut  om^^ri'itM  Nlioiild  hnv« 
thin  |i()Wt<r  ti)  r«*)(iiliit<'  tin*  Mule  and  trani*|)orl<ilirin  ul'iluveii  from  Ntate  tn  itate.  It 
\va«  not  one  ot'  (Ik*  dilliiMiltit>s  wliicli  Mr.  iM;idi<4on  or  N'ir^nnin  had  in  view,  whrn 
they  |)ro|i<)Hi>d  (iiilliiiK  ihti  conveiilion  to  rrfuli'  thix  )T<iv»Tnin«'nt.,  I'nr  tlm  fxprrcn 
and  only  |nir|ii)!*f  nl'  iKloplinif  nnilnrni  rfjriiliiUoiiN  ot'oiMinii-rot*,  o|icriititi}r  alike  in 
all  tint  Ht.iti'H.  i\o  iint>  ''iiin|>l'iiniMl  nt'  ilii>  want  of  huvU  a  |)ou'er  hh  to  Niavi'N,  an  a 
rvaHDii  tor  ado|itiii(;  tli«  conHtilulion  ;  and  no  Hurh  uniform  n-gtilatiopM  on  thatauh- 
ject,  UH  bflwiM-n  the  stalnH,  were  Kvcr  anli(:i|ml('d  or  pro|)i)si'd.  The  oonvenlioii 
was  (vtllcd  at  thi*  instancti  (d'a  Nlavi>-holdin>;  nIiiIo,  Vir^rinia,  niidi>r  Mr,  Maditinn'it 
re«(diition,  for  iIih  only  exiirt'.iH  |Mir|ioHo  of  trivin<»  to  ciinjfrfH8  pow^r  to  adopt 
"  uniform  reiruluiiunH"  »h  to  ('iinini<'r(t(> ;  and  the*  power  in  ([UfNlion  wna  inHcrtcd  in 
the  constilutioti,  on  the  motion  of  Sontii  C'arolinu.  itut  did  tMthor  of  thoMc  Htatei, 
or  any  other  Mtalp,  complain  of  the  non-t'xiatciiL'c  of  hucIi  h  power  as  to  wliiveH,  or 
desire  that  it  Hhonld  lie  (rrnnted  to  (he  >.'eneral  {rovernment  f  Th«  power  which 
V'irjfinia  ami  Sonth  (':irolina,  and  all  the  HlatcH  deHired  to  lie  vewled  in  cimi^reHs, 
concerned  only  that  universal  eiMihiien  e,  exlendinir  to  foreijrii  nations,  and  amonjj 
all  the  Hlaten,  and  etfeclin'r  all  that  Virginia  and  South  Ciindina,  or  any  other 
Htate  desired  to  be  reirulaled  by  the  jr»>nc'ral  guvernment,  and  not  the  {oral  and  deli- 
fate  Hubjer.t  of  slavery;  and  neither  in  the  debates  or  proceedinL'u  and  resolulionH 
of  tlie  various  states,  when   deli'jj;iiteH  were  rlinHen  to   form   their  constitution,  nor 

in  the  resolutions,  proc lini/s  and  debates  of  the  conjiress  of  tlie  old  confederacy, 

on  the  same  sulij-ct.  nor  in  the  i;eneral  convention  which  framed,  or  the  various 
statu  conventions  which  ratified  it,  nor  in  the  contemporaneous  commentaries  of 
the  <jreat  men  who  expounded  it  at  the  period  of  its  adoption,  is  there  one  word 
showinir  that  the  sale  or  transportation  of  slaves  from  state  to  stale,  was  one  of  the 
grievances  to  be  remedied  l)y  the  convi-ntion,  or  that  any  ()ower  over  that  subject  wn^i 
to  be  dele<rated  to  cotii^ress.  Nor  is  it  less  remarkable,  that  in  the  various  publica- 
tions of  the  day,  and  ariruments  in  and  out  of  the  various  conventions  which  ratified 
it,  did  any  one  of  its  able  opponents  ima^'ine  that  such  u  power  was  conferred  by 
this  clause  on  congress.  Where  was  the  Artfua-eyed  vij^ilance  of  Patrick  Henry, 
and  Cleorire  Masmi  of  Virifiiiia,  who  wo  ably  opposed  the  adoption  of  the  constitu- 
tion ?  Where  the  watchfulness  of  the  other  irreat  statesmen  of  the  south,  ho  many 
of  whom,  as  well  as  (Jeorire  Mason,  Lutlier  Martin,  and  others,  had  been  members 
of  the  c<mvention  which  framed  the  cnnstitutiim,  and  opposed  its  adoption,  by  so 
many  arjriiinents  in  the  state  conventions  which  ratified  it,  that  they  never  din- 
covereil,  that  under  this  power,  coni^ress  luifrhl  reirulate  or  prohibit  the  transporta- 
tion anil  sate  of  slaves  from  state  to  stale,  and  thai  all  state  power  over  that  suli- 
jec.t  was  annihilated.''  It  is  trui»  some  of  them  did  fear  that  for  want  of  a  bill  of 
rights,  similar  to  that  subaeipiently  adopted  by  the  ten  amendments  to  the  consti- 
tution, and  esiicially  the  tenth,  that  implied  powers  mii.'ht  be  exercised  under  tlie 
general  welfare  and  oilier  clauae.s,  but  all  which  aiiprehensions  were  forever  re 
moved  afterwards  bv  the  adoption  of  these  amendments,  the  want  of  which  was 
the  cause  of  their  o)jposition. 

We  are  asked  to  admit  the  following  pro])nsitions — 1st,  that  congress  was  vested 
with  power  supreme  and  exclusive,  to  authorize  and  enforce  the  slave  trade  anion"/ 
the  states,  against  their  prohibition,  2(1,  that  congress  was  denied  all  power  to 
prohibit  the  slave  trade  anionir  the  stales.  3d,  that  the  slates  themselves  w-^re 
prohibited  from  arresting  or  regulating  this  trade.  If  this  be  so,  it  follows  as  a 
consequence,  that  the  framers  of  the  constitution  intended  to  perpetuate  under 
their  authority  the  slave  trade  among  the  states,  and  to  annihilate  nil  power,  either 
in  the  states,  or  in  the  general  jrovernnient,  to  arrest  this  traffic.  To  j)rf)liibit  the 
slave  trade  among  the  states,  by  the  authority  of  congress,  would  be  most  dange- 
rous; but  how  infinitely  more  dangerous  is  the  power  now  claimed  for  congress, 
by  our  opponents,  to  force  all  the  slaves  of  eight  or  ten  states  into  two  or  three 
states,  as  merchandise,  against  the  consent  of  those  states,  and  thus  accumulate 
the  disproportion  in  those  states,  between  the  whites  and  the  slaves,  and  thus  force 
upon  those  states  revolt  and  insurrection  on  the  one  hand,  or  emancipation  upon 


i.  m 


Ixiv 


Groves  ct  ah  v.  Slaughter. 


the  other,  extorted  by  the  superiority  of  numbers.  Who  believes  that  the  framers 
of  the  constitution  ever  intended  to  force  such  an  alternative  upon  any  of  the 
states  of  the  Union;  or  that  all,  or  any  of  the  states,  would  ever  have  consented  to 
tiie  vesting  of  such  powers  in  the  government  of  the  Union? 

It  may  be  contended,  however,  that  this  power  to  regulate  the  transportation  of 
slaves  from  state  to  state,  arises  by  implication,  under  the  9th  section  of  the  1st 
article  of  the  constitution.  That  section  is  in  these  words  :  "  Sec.  9.  The  migra- 
tion or  importation  of  such  persons  as  any  of  the  states  now  existing  shall  think 
proper  to  admit,  shall  not  be  prohibited  by  the  congress  prior  to  the  year  one  thou- 
sand eighfhundred  and  eight,  but  a  tax  or  duty  may  be  imposed  on  such  importa- 
tion, not  exceeding  ten  dollars  for  each  person." 

Now,  if  this  section  be  only  an  exception  to  the  power  of  congress  to  regulate 
commerce,  and  I  have  shown  that  that  power  does  not  apply  to  this  case  ;  then  this 
section  would  have  no  operation  whatever  upon  the  present  question.  As,  how- 
ever, it  is  impossible  for  me  to  anticipate  the  views  of  the  court  in  regard  to  this 
section,  it  is  my  duty  to  consider  it,  which  shall  be  done  in  the  only  two  aspects  in 
which  it  could  apply.  First,  as  a  substantive  power;  and  secondly,  as  an  exception 
to  the  power  of  congress  to  regulate  commerce.  This  section  has  never  received  a 
construction  from  this  couit,  iilthougli  there  are  some  obiter  dicta  in  which  it  is  re- 
garded as  an  exception  to  the  posver  to  regulate  commerce.  Now,  although  it  may 
not  be  material  to  the  determination  of  this  question,  and  probably  will  not  be  so 
considered  by  the  court;  yet  I  do  regard  this  clause  of  the  9th  section  as  a  sub- 
stantive power,  and  not  an  exce])tion  to  a  power  already  granted.  Exceptions  to 
granted  powers  are  usually  inserted  in  a  proviso  to  the  grant  of  those  powers. 
When  a  power  is  delegated,  and  the  grantors  desire  to  reserve  from  those  powers 
something  by  way  of  exception,  that  otherwise  would  follow  from  the  grant,  it  is 
done  by  a  proviso,  designating  the  exception,  and  declaring  that  it  shall  not  be  in- 
cluded in  the  granted  power.  If  this  is  not  done  by  a  proviso,  it  is  done  by  lan- 
guage to  the  same  effect,  following  immediately  the  words  of  the  granted  power, 
and  designating  the  exception  to  it ;  and  we  might  as  well  look  to  a  subsequent 
section  of  a  constitution  to  find  an  enlargement  of  a  granted  power,  as  exceptions 
to  it.  When  the  power  is  granted,  there  is  the  appropriate  place  to  enlarge  or 
diminish  the  sphere  of  its  operation,  and  not  in  a  different  section  of  the  constitu- 
tion. Now,  this  clause  is  wholly  unconnected  with  the  granted  power  to  regulate 
commerce.  It  is  in  a  different  section  of  the  constitution,  entirely  separated  from 
the  clause  or  section  in  relation  to  commerce,  and  disconnected  from  it,  not  only 
by  position,  but  by  no  less  than  fourteen  distinct  and  substantive  grants  of  power, 
wholly  unconnected  with  the  authority  to  regulate  commerce.  Such  is  the  separa- 
tion in  position  of  these  two  powers  in  the  constitution  ;  but  when  we  look  bej'ond 
that  instrument,  to  the  journal  of  the  convention  which  formed  the  constitution, 
and  the  debates  in  that  body,  we  will  find  the  same  separation  in  the  order  of  time, 
when  these  two  sections  were  adopted. 

At  page  746,  volume  2d,  of  the  Madison  papers,  we  will  find  this  commercial 
power  first  proposed  in  the  following  words  :  "  To  regulate  commerce  v.'ith  all 
nations  and  among  the  several  states."  This  clause  was  afterwards  modified  by 
inserting  "  foreign  nations,"  instead  of  "  all  nations,"  and  by  enlarging  the  power 
by  the  addition  of  the  words  "  and  with  the  Indian  tribes."  Here  then  was  the 
place  and  the  time  when  the  convention  was  modifying  and  enlarging  thip  power, 
to  designate  the  exceptions  to  it.  The  dute  of  this  original  proposition  in  regard  to 
the  commercial  power,  was  the  29th  of  May,  1787.  I  find  that  on  the  6th  of 
August,  following  pages  1226,  1232,  123S,  1234,  of  the  same  book,  that  this  com- 
mercial power  was  again  proposed  by  the  committee  of  detail,  in  the  following 
words,  in  the  1st  section  of  the  7th  article  of  the  constitution.  "  To  regulate  com- 
merce with  foreign  nations,  and  among  the  several  states."  The  3d  section  fixes 
the  proportions,  in  which  "  taxation  shall  be  regulated,"  and  the  4th  section,  which 
follows,  is  in  the  following  words  :  Section  4.  "  No  tax  or  duty  shall  be  laid  on 
articles  exported  from  any  state ;  nor  on  the  migration  or  importation  of  such 
persons  as  the  several  states  shall  think  proper  to  admit ;  nor  shall  such 
migration  or  importation  be  prohibited."     Here,  this  clause  first  appears,  in  a 


V  ' 


Groves  et  al.  v.  Slavghter. 


Iav 


distinct  section,  in  relation  to  the  taxing  power,  and  with  a  declaratory  proviso  to 
that  power. 

On  the  15lh  of  August,  1787,  (page  1343)  we  find  the  convention  adopting 
unaninioiisly,  the  clause  for  regulating  couiinerce  as  before  quoted.  Now,  if  the 
power  to  proliibit  the  importation  of  slaves,  liad  been  considered  as  included  in  the 
power  to  regulate  commerce,  we  know,  and  no  one  denies,  that  at  least  two  states, 
instead  of  voting  for  this  clause  as  they  did,  would  have  opposed  it,  as  they  did  all 
power  to  prohibit  this  importation  ;  finally  yielding  to  a  compromise,  by  which  the 
importation  should  not  be  prohibited  until  1808.  Is  it  not  then  inconceivable,  that 
this  prohibition  thus  opposed  by  at  least  two  slates,  should  have  been  regarded  as 
included  in  the  clause  to  regulate  commerce,  thus  unimiinuunlij  adopted;  when,  if 
such  a  prohibition  had  been  supposed  to  be  included,  these  two  states  had  declared 
that  they  could  not  become  parties  to  the  constitution.  Mr.  Pinckney  of  South 
Carolina,  had  proposed  this  very  clause  to  rtgulate  commerce,  and  he,  and  lii.s 
state,  and  all  the  stales  we  have  seen  voted  for  it;  but,  at  pnge  1389,  we  find, 
Mr.  Pinckney  declaring,  "  South  Carolina  can  never  receive  the  plan,  if  it  prohibits 
the  slave  trade  ;"  in  which  he  was  joined  by  Georgia.  Yet,  Georgia  and  South 
Carolina  had  both  voted  for  this  very  commercial  power,  which  is  now  asked 
to  be  regarded  as  including  by  implication  a  prohibition  to  which  they  could  not 
assent. 

On  the  21st  of  August,  this  section  as  to  migration  and  importation  as  before 
quoted,  was  taken  up,  (page  1382)  and  it  was  discussed  at  length,  in  connexion 
with  the  taxing  power. 

At  page  1388,  "  Mr.  L.  Martin  proposed  to  vary  article  7,  section  4,  so  as  to 
allow  a  "  prohibition  or  tax  on  the  importation  of  slaves."  Mr.  Ellsworth  of  Con. 
opposed  it ;  he  said,  "  Let  every  slate  import  what  it  pleases."  Mr.  Pinckney  and 
Mr.  llutledge  of  South  Carolina,  opposed  it ;  Mr.  Sherman  opposed  it,  and  Gen. 
Pinckney,  Mr.  Baldwin,  Mr.  Gerry.  Mr.  Williamson.  Here,  very  many  of  the 
slates  opposed  it ;  two  slates  declared  that  such  a  prohibition  would  prevent  their 
becoming  parties  to  the  constitution  ;  and  yet  all  had  voted  for  this  very  clause  as 
to  commerce,  from  which  the  prohibitory  power  is  now  asked  to  follow  by  impli- 
cation. Such  is  the  history  of  this  matter  as  now  furnished  by  Mr.  Madison,  and 
it  appears  to  me  conclusive  on  the  question. 

We  have  seen  the  order  in  which  this  clause  stood  in  the  constitution  as  report- 
ed by  the  committee  of  detail;  and  after  undergoing  various  modifications,  we  have 
seen  the  order  in  which  it  now  standi;  in  that  instrument.  Separated  as  it  was  by 
the  commiltee  t'roin  the  clause  in  relation  to  commerce,  why,  in  the  transposition 
which  took  place  afterwards,  was  it  not  connected  with  that  clause  as  a  proviso,  or 
in  some  other  manner,  if  it  was  adopted  by  the  convention  as  an  exception  to  the 
commercial  power.'  But  there  are  oth^r  reasons  still  stronger  against  this  position. 
The  clause  in  question,  gives  to  congress  power  to  tax  the  importation  of  negroes, 
not  exceeding  ten  dollars  for  each  person.  Now,  is  this  a  modification  of,  or  ex- 
ception to  the  commercial  power  ' 

In  9  Wheaton,  200-201,  Chief  Justice  Marshall,  in  delivering  the  opinion  of  this 
court,  declares,  that  duties  or  taxes  on  importation,  are  branches  of  the  taxing 
power,  and  wholly  distinct  and  separate  from  the  commercial  power  ;  and  he  ex- 
pressly declares,  that  exceptions  from  or  modifications  of  this  power  of  imposing 
duties  or  taxes  on  importation  and  exportation,  are  exceptions  to  or  modifications 
of  the  taxing,  and  not  of  the  commercial  nower.  But  again,  the  whole  of  this 
clause  applies  to  persons;  and  this  court  have  decided,  that  in  contemplation  of  the 
constitution  of  the  Union,  persons  "  are  not  the  subject  of  comu>°rce,"  so  as  to  be 
included  in  the  construction  of  a  power  given  to  congress,  to  regulate  "  com- 
merce." 11  Peters.  13fi-137.  Now  this  clause  speaks  of  [>ersons,  and  of  persons 
only;  and  it  includes  negro  freemen,  as  well  as  negro  slaves,  as  is  expressly 
declared  by  Chief  Justice  Maishall,  in  9  Wheaton,  21(>-217;  the  term  migration 
embracing  the  free,  and  the  term  importntion,  the  slaves;  and  upon  this  principle, 
congress  has  legislated  on  the  subject.  However,  then,  it  may  have  been  disputed 
whether  slaves  as  articles  of  conunerce  were  embraced  in  the  commercial  power  ; 
no  one  can  pretend  that  free  negroes  were  articles  of  sale  or  commerce,  and  em- 
f2 


Ixvi 


Groves  et  al,  v.  Slaughter. 


braned  in  the  commercial  power.  This  appears  to  me  conclusive  against  the  posi- 
tion that  this  clause  is  an  exception  from  the  power  of  congress  to  regulate 
commerce.  If  then  this  clause  be  a  substantive  power,  does  it  confer  the  authority 
Claimed  in  this  case  to  prohibit  the  transportation  of  slaves  from  state  to  state  .''  It 
is  conceded  that  the  term  importation  applies  only  to  slaves  introduced  from 
abroad  ;  but  it  has  been  contended  that  the  term  migration  does  apply  to  the  trans- 
portation of  slaves  from  state  to  state.  Now  this  is  against  the  opinion  of  Chief 
Justice  Marshall,  on  the  point  last  quoted — upon  the  ground  that  migration  applies 
to  free  negroes,  and  to  voluntary  removal,  or  change  of  residence  by  them,  and 
therefore  can  have  no  application  to  slaves.  But  independent  of  this  decision,  is 
it  not  clear  that  the  term  migration  applies  to  persons  coming  from  abroad,  and 
not  a  removal  from  state  to  state  ?  This  is  the  true  grammatical  meaning  of  the 
term,  but  there  is  still  higher  authority  not  heretofore  referred  to. 

In  the  Declaration  of  American  Independence,  we  find  the  following  clause  , 
"  He  has  endeavoured  to  prevent  the  population  of  these  states  ;  for  that  purpose, 
obstructing  the  laws  for  naturalization  of  foreigners ;  refusing  to  pass  others  to 
encourage  their  migration  hither;  and  raising  the  conditions  of  new  appropriations 
of  lands." 

Here  the  term  migration,  in  its  true  American  sense  as  applicable  to  our  peculiar 
position  as  states  and  aa  a  nation,  is  used  as  embracing  only  persons  coming  from 
abroad,  and  no  other.  Now,  when  we  reflect,  that  many  of  the  persons  who 
signed  the  Declaration  of  Independence,  were  also  members  of  the  convention 
which  framed  the  constitution  of  the  United  States,  did  these  same  distinguished 
statesmen  use  the  term  in  one  instrument  as  applicable  only  to  persons  coming 
from  abroad,  and  in  the  other  as  only  applicable  to  persons  passing  from  state  to 
state  :  thus  using  the  same  term  to  express  a  totally  difl'erent  thing  in  the  two 
cases  ?  But  when  the  great  statesmen  of  that  day  designed  to  designate  a  passing 
or  removing  from  state  to  state,  they  used  very  different  and  appropriate  terms  to 
express  that  object. 

In  the  articles  of  confederation  they  say  :  "  The  people  of  each  state  shall  have 
free  ingress  and  regress  to  nnd  from  any  other  state."  Here,  where  they  intend  to 
designate  a  passing  or  removing  from  state  to  state,  the  terms  "  ingress  and  re- 
gress" are  used,  and  not  the  term  migration.  Now,  very  many  of  those  who 
framed  the  articles  of  confederation,  were  also  franiers  of  the  Declaration  of  Inde- 
pendence, and  of  the  constitution  of  the  United  States;  and  is  it  conceivable  that 
had  they  designed  to  regulate  the  ingress  or  regress  from  state  to  state,  they  would 
not  have  used  the  language  of  the  articles  of  confederation,  and  not  a  word  to 
which  they  had  given  a  very  different  meaning  in  the  Declaration  of  Indepen- 
dence. When  looking  beyond  the  words  lliemselves,  to  the  debates  in  the  conven- 
tion whicii  framed  the  constitution,  we  find  the  construction  universally  confined 
to  persons  from  abroad,  and  Gouverneur  Morris  and  Col.  Mason,  both  staled  witiiout 
contradiction  in  the  convention  the  fact,  that  the  clause  extended  to  "  freemen," 
and  no  one  suggested  the  possibility  of  its  being  extended  to  the  transportation  of 
slaves  from  state  to  state.  If,  then,  this  clause  be  a  substantive  grant  of  power, 
and  not  an  exception  to  the  commercial  power,  and  if,  as  w  liave  seen,  it  does  not 
extend  to  the  transportation  of  slaves  from  state  to  state,  lucre  is  an  end  to  the 
question  ;  for  here,  if  any  where,  the  power  would  have  been  givesi.  But,  sup- 
pose it  to  have  been  an  exception  or  proviso  to  the  commercial  power,  is  it  any 
thing  more  than  a  declaratory  proviso  to  prevent  by  a  provision,  added  to  this 
power,  ex  abundanti  cautela,  any  construction,  by  which  congress  could  prohibit 
the  miirration  or  importation  of  certain  per.'^ons  ?  This  was  the  form  in  whicli  it 
was  first  introduced,  and  the  designation  of  the  year  1808,  as  well  as  the  taxing 
authority,  were  added  by  subsequent  amendments. 

The  convention  grant  to  congress  tiie  commercial  and  taxing  powers ;  but  to 
prevent  these  powers  being  construed  to  extend  to  an  autiiority  to  prohibit  t!ie  in- 
troduction of  certain  persons,  such  a  proviso  is  proposed,  which,  by  a  compromise 
as  to  time  and  taxation,  is  made  to  assume  its  present  shape-  and  this  is  all  that 
was  intended  by  the  obiter  dicta  before  referred  to,  in  which  this  clause  is  spoken 
of  as  an  exception  to  the  commercial  power.     Such  language  cannot  imply  that 


Groves  et  al.  v.  Slaughter. 


Ixvii 


the  powers  granted  in  this  clause  would  have  been  included  in  the  commercial 
power ;  for  we  have  seen  that  this  power  did  not  embrace  an  authority  to  lay 
duties  or  taxes  on  importation,  nor  extend  to  j)ersons  of  any  description,  much  less 
te  freemen  as  articles  of  commerce.  Hut,  even  if  this  clause,  as  an  exception  to 
the  commercial  power,  would,  but  for  this  proviso  liave  been  embraced  in  that 
power,  then  the  extent  of  the  power  as  thus  indicated  by  implication,  would  not  go 
beyond  the  exception  itself;  and  this,  we  have  seen,  did  not  embrace  the  transpor- 
tation of  slaves  from  state  to  state.  Such  being  the  case,  what  would  be  the 
extraordinary  implication  to  which  we  are  asked  to  resort .'  Why,  that  although 
the  clause  in  question  does  not  extend  to  the  transportation  of  slaves  from  state  to 
state  ;  yet,  as  it  does  extend  after  a  certain  date  to  the  importation  of  slaves  from 
abroad,  and  as  but  for  this  exception,  congress,  even  prior  to  that  date,  would  have 
possessed  this  power  as  to  such  importation  from  abroad  under  the  authority  to 
regulate  commerce,  therefore,  congress  always  possessed  the  authority  under  the 
commercial  power  to  prohibit  the  transportation  of  slaves  from  state  to  state. 
Hence,  it  would  follow,  that  by  this  construction,  congress,  immediately  on  the 
adoption  of  the  constitution,  without  waiting  till  1808,  could  at  once  prohibit  the 
introduction  of  slaves  from  state  to  state,  and  yet  a  power  so  tremendous,  now  ex- 
tracted by  implication,  was  never  even  alluded  to  in  the  convention,  nor  would  the 
constitution  ever  have  been  formed,  if  such  a  power  had  been  asked  to  be  vested 
in  congress.  Would  the  slave-holding  states  have  consented  that  congress  should 
forbid  the  importation  or  exportation  of  slaves  from  state  to  state,  and  that  congress 
alone  should  regulate  their  policy  in  this  respect  ?  Especially  would  Georgia  and 
South  Carolina,  that  would  not  join  the  Union  unless  the  African  slave  trade  were 
kept  open  from  1787  to  1808,  ever  have  agreed  to  a  constitution,  by  which,  i?H- 
7nediately  on  its  adoption,  they  could  not  introduce  either  for  sale  or  use  slaves 
from  an  adjoining  state  ;  no,  not  even  when  acquired  by  gift,  devise,  or  inherit- 
ance.'' And,  now  let  be  observed,  that,  as  it  is  shown,  the  power  to  prohibit  the 
transportation  of  slaves  from  state  to  slate  does  not  follow  from  tiiis  yth  section, 
and  to  commence  in  1808  ;  that  if  it  existed  at  all,  it  was  as  an  inference  from  the 
commercial  power  which  went  into  effect  immediately.  No  one  then  can  believe 
that  any  such  power  was  ever  designed  to  he  vested  in  congress.  It  never  could 
have  been  directly  granted,  and  now  to  interpolate  it  by  implication  would  be  a 
fraud  on  the  parties  to  tlje  constitution. 

But  there  is  another  reason  why  this  clause  is  not  a  mere  exception  to  the  com- 
mercial power.  That  power  this  court  have  declared  is  vested  exclusively  in 
congress,  and  no  portion  of  it  can  be  exercised  by  any  state  even  though  congress 
may  not  have  legislated  on  the  subject.  Now,  liiis  clause  of  the  9th  section  was 
admitted  in  the  convention  to  extend  to  the  prohibition  of  the  admission  o{  cvnricts 
from  abroad.  Madison  Papers,  1 130,  143().  Yet  this  court  have  declared,  that 
the  states  do  possess  the  power  to  prohibit  the  introduction  of  foreign  convicts.  11 
Peters,  llS,  149.  If,  then,  the  states  possess  this  power,  and  it  is  also  vested  in 
the  general  government,  it  must  be  a  case  of  concurrent  powers,  and  of  course  is 
not  eiiibrn.ced  in  the  commercial  power,  which  we  have  seen  is  not  the  case  of  a 
concurrent  authority,  but  of  an  authority  denied  altogether  lo  the  states  and  vested 
in  congress  alone.  When  the  constitution  was  formed  we  became  as  to  all  powers 
conferred  exclusively  on  congrosn  i)y  that  instrument,  as  this  court  have  decided, 
one  country  ;  especially  as  regards  tins  cmmiercial  power,  we  were  in  the  strong 
language  of  this  court,  "  a  single  governiiieiit,''  recognising  as  regarding  this  power 
no  state  boundaries.  And  yet,  in  rehition  to  this  very  power,  migrate,  which 
means  a  removal  from  one  country  to  another  country,  is  asked  to  be  construed  to 
mean  a  removal  from  one  part  of  a  country  to  auotiier  part  of  the  same  country; 
and  that  too,  when,  as  to  this  clause  considered  as  an  exception  to  the  com- 
mercial power,  the  whole  country  in  tirtlt  respect  was  as  this  court  have  declared, 
a  "  unit,"  a  "  single  government,"  knowing  no  separate  state  jurisdiction  or 
boundaries. 

It  has  been  shown  that  this  law  is  not  embraced  within  the  power  of  congress 
to  regulate  commerce  ;  and  this  would  be  sufficient,  but  I  will  go  further,  and  prove 
that  it  is  a  power  reserved  to  the  states.     The  reserved  powers  of  the  states,  com- 


Ixviii 


Groves  et  al.  v.  Slaughter. 


prise  all  those  not  delegated  to  the  general  government,  or  prohibited  to  the  states. 
The  states  were  the  fountain  springs  of  all  the  powers  vested  in  congress,  and  this 
is  a  case,  which  goes  to  the  source  of  all  power,  and  never  was,  and  perhaps  never 
could  be  abandoned,  without  a  total  surrender  of  all  sovereignty.  It  is  the  power  of 
self-preservation  ;  it  is  a  matter  of  the  police  of  a  state,  regarding  its  internal  policy  ; 
a  municipal  regulation,  to  preserve  the  tranquillity,  or  promote  the  prosperity  of  the 
state,  and  guard  the  lives  of  its  iniiabitanta.  It  is  similar  in  principle  to  the  qua- 
rantine and  health  laws  of  a  state,  its  pauper  and  inspection  laws,  and  many  others 
of  a  similar  character.  It  is  a  local  provision  for  the  internal  peace  or'  :  security  of 
the  .slate,  growing  out  of  the  inherent  and  inalienable  right  of  self-preservation, 
and  operating  exclusively  witiiin  tiie  limits  of  the  state.  It  is  a  j  )Vier  to  guard 
the  state,  '' against  domestic  violence,"  which  not  only  was  reserve«  to  he  state, 
but  to  the  state  exclusively,  unless  upon  its  "application"  for  aid  o  the  govern- 
ment of  the  United  States.  The  4tli  sec.  4th  art.  of  the  constitution,  declares; 
"  Tiie  United  States  shall  guaranty  to  every  state  in  this  Union  a  republican 
form  of  government,  and  shall  protect  each  of  them  against  invasion,  and  on  appli- 
cation of  the  legislature,  or  of  the  executive,  (when  the  legislature  cannot  be  con- 
vened,) against  domestic  violence."  It  is  then  witiiin  the  clearly  reserved  power 
of  a  slate  to  "  protect"  itself,  "  against  domestic  violence ;"  and  it  may  do  so  by  the 
means  of  the  state  itself;  or  congress,  upon  the  application  of  tiie  state,  and  not 
otherwise,  may  come  to  its  aid  in  sucli  an  emergency.  In  the  state  then  alone 
resides  the  power  to  pass  all  laws,  designed  to  protect  its  people  against  domestic 
•  olence.  It  is  not  to  wait  until  the  apprehension  of  domestic  violence  shall  have 
been  realized,  it  is  not  to  wait  until  that  violence  sliall  have  assumed  the  form  of  an 
"insurrection,"  but  looking  forward  to  the  pos.sibility  of  such  an  event,  it  may 
enact  all  laws  calculated  to  prevent  such  a  catastrophe.  It  is  true  that  congress, 
under  tiie  8tli  section  of  the  Ist  article  of  the  coni-iilution,  have  power  "  to  provide 
for  calling  forth  the  militia  to  execute  the  laws  of  the  l''nto>j,  suppress  insurrections, 
and  repel  invasions."  But  this  clause  has  no  application  to  this  case,  and  even  if 
it  had,  cc  '1  not  interfere  with  the  state  law  upon  this  subject.  But  what  is  this 
power  of  congress  in  this  section  .-'  It  is  peculiar  and  specific — 1st,  it  relates  wholly 
to  insurrections  to  subvert  "the  laws  of  the  Union,"  an  insurrection  against  the 
government  and  authority  of  the  United  States,  and  not  a  case  of  "  domestic  vio- 
lence," which  applies  peculiarly  to  a  movement  against  the  laws  and  government 
of  a  state.  2d,  it  is  a  power  only  to  call  forth  tlie  militia,  and  the  purpose  is  to 
"  suppress"  the  insurrection.  But  it  will  not  be  contended  that  this  power  applies 
to  a  case  of"  domestic  violence,"  confined  to  the  limits  of  a  state,  and  conflicting 
only  with  its  own  laws,  and  its  own  authority.  Each  state  then  possesses  the  sole 
power  of  protecting  its  citizens,  "  against  domestic  violence  ;"  the  general  govern- 
ment protects  a  state  against  iiiraslonfroin  abroad,  without  waiting  for  any  appli- 
cation from  the  state.  But  desirable  as  such  protection  might  be,  in  case  of  do- 
mestic violence,  the  states  were  not  willing  that  in  such  a  case  the  government  of 
the  Union  should  act,  except  upon  the  "application"  of  the  state.  What  then  is  a 
case  of  domestic  violence  ?  Can  any  one  doubt,  that  a  rising  of  the  slaves  to  as- 
sume the  government  of  a  state,  or  to  take  the  lives  of  its  citizens,  or  oppose  or  sub- 
vert its  laws,  would  be  a  case  of  "  domestic  violence,"  to  guard  against  which 
before  it  occurred,  as  well  as  to  suppress  it  afterwards,  is  one  of  the  powers  clearly 
reserved  by  every  state.  Now  may  not  a  slate,  as  a  means  of  accompliishing  this 
object,  prevent  the  introduction  of  dangerous,  or  convict,  or  insurgent  slaves,  whose 
importation  might  produce  domestic  violence  .'  This  court  determined  upon  a  con- 
struction cotemporaneous  with  the  formation  of  the  constitution,  tlint  a  state  may 
prevent  tiie  introduction  of  malefactors,  11  Peters,  148.  This  is  permitted-  as  a 
measure  of  internal  police,  to  guard  the  peace  of  the  state,  and  promote  the  tran- 
quillity and  happiness  of  its  people.  This  %-all  the  slave  states  have  ever  done,  and 
in  pursuance  of  such  a  policy  and  to  effectuate  the  same  object,  might  they  not 
prevent  the  introduction  of  wicked  or  dangerous  slaves,  although  not  yet  condemned 
as  convicts  by  the  tribunals  of  a  sister  state  .'  Suppose  insurgent  slaves  hhd  been 
reserved  as  informers,  and  never  tried  or  condemned  within  the  limits  of  a  sisier  state, 


Groves  et  ah  v.  Slaughter. 


Ixix 


none  can  doubt  the  power  of  any  state  to  prevent  tlieir  introduction,  and  especially 
as  slaves  within  their  limits.  In  carrying  out  the  same  policy  of  self-preservation, 
might  not  a  state  have  said  after  tlie  Southiunpton  massacre,  that  no  slaves  front 
that  region,  whether  witnesses  or  partici|)ati)rs  in  that  transaction,  should  lie  brought 
within  their  limits  ;  or  if  particular  classes  of  [lersons  importing  slaves  for  sale,  had 
been  in  the  habit  of  introducing  into  a  stale,  wicked  or  dangerous,  insurgent  or 
convict  slaves,  might  not  a  state  prohibit  the  introduction  of  slaves  for  sale,  by  such 
persou  altogether,  especially  if  the  stale  liiid  endeavoured,  (as  we  have  seen  Mis- 
sissippi had  done  for  years,)  to  prevent,  by  various  requisitions,  the  introduction,  by 
negro  traders,  of  slaves  of  liiis  description,  all  which  luid  proved  unavailing;  might 
not  the  state,  iis  the  most  or  the  only  etlectual  remedy,  exclude  the  introduction  of 
slaves,  by  such  traders  or  classes  of  persons  allojrether,  embracing  thus,  in  the  ex- 
clusion, all  slaves  introduced  as  mercliandise?  Engaged  us  these  traders  were  in 
this  inhuman  traffic;  transporting  these  slaves  in  cliuins  from  state  to  stale,  for  the 
sole  purpose  of  a  sale  for  prohl ;  desirous  of  increasing  this  profit  by  purcliasing 
the  cheapest  slaves,  which  would  always  be  tlie  uiosl  wicked  and  dangerous,  reck- 
less of  the  moral  qualities  and  clinracter  of  the  slaves  whom  they  bought,  not  for 
their  own  use,  but  to  sell  for  speculation  ;  templed  to  buy  the  most  wicked  slaves, 
because  always  to  be  purchased  at  the  lowest  price,  and  sold  in  a  distant  slate  at 
the  highest  price,  to  tliuse  who  would  be  ignorant  of  their  dangerous  character; 
inured  as  these  traders  were  to  scenes  of  wretchedness  and  cruelty,  and  entirely- 
regardless  of  the  means  by  which  they  reaped  a  profit  from  this  traffic,  why  might 
we  not,  as  a  means  of  self-protection,  arrest  this  tralfic  by  forbidding  the  introduc- 
tion of  slaves  as  merchandise?  Especially  when  a  slate  had  tried  alt  other  means 
to  arrest  the  inlioduction  of  dangerous  slaves,  and  had  found  the  stale,  notwith- 
standing her  previous  restrictions,  inundated  by  Ihese  traders  with  the  wicked  and 
abandoned  slaves,  the  insurgents  and  malefactors,  the  sweepings  of  the  jails  of 
other  states,  might  they  not  wholly  exclude  the  traffic,  as  the  only  effectual  means 
of  self-preservation  ? 

If  experience  had  demonstrated  that  it  was  unsafe  to  trust  with  slave  traders 
the  introduction  for  sale  of  slaves,  why  might  not  the  stale  arrest  the  importation 
by  them  of  slaves  as  merchandise  ?  But  even  if  they  could  repose  for  the  character 
of  the  slaves  upon  the  traders,  there  was  tliat  in  the  very  mode  and  purpose  of  in- 
troduction which  rendered  nearly  all  such  slaves  most  dangerous  to  the  tranquillity 
of  the  stale.  The  very  manner  in  wliich  these  slaves  were  forced  from  one  state 
and  driven  into  another,  would  introduce  them  with  hearts  overflowing  with  bitter- 
ness, and  stimulated  to  revenge  the  most  deadly,  against  the  seller  and  the  pur- 
chaser. Such  slaves  would  seek  for  vengeance,  not  only  by  their  own  deeds,  but 
they  would  endeavour  to  inflame  the  passions  of  all  other  slaves  in  the  slate,,  who 
but  for  their  contaminating  influence  would  have  remained  useful  and  contented. 
Who  can  deny  that  there  was  danger  arising  from  such  transactions .'  T/ic  ligisla- 
tion  of  all  the  sUive-hnlding  states  <lr.inonslr<itcs  that  it  is  so  ;  and  our  own  courts  have 
so  declared  the  fact;  and  did  the  slate  possess  no  adequate  power  to  prevent  these 
dangers  by  the  exclusion  of  all  such  slaves,  and  the  arresting  of  all  such  traffic  .' 
Nor  was  it  only  succeeding  the  sale,  but  whilst  these  negroes  are  encamj)ed  by 
thousands  throuo'hout  the  state  for  sale,  that  the  danger  was  imminent.  And  if 
any  state  might,  for  her  own  safety,  thus  interfere  to  guard  the  state  against  these 
dangers,  from  wicked  or  convict  slav>'s  introduced  for  sale  from  other  states,  and 
stinmlated  to  revenge  bj'  the  mode  of  tlieir  introduction  ;  why  might  not  the  state, 
in  addition  to  these  evils  from  the  character  of  the  slaves,  perceive  new  and  greater 
sources  of  alarm,  in  the  overwhelming  prepf)nderance  in  numbers,  thus  inevitably 
given  to  the  slave  over  the  white  population;  and  might  not  Mississippi,  situated  as 
she  was,  find  in  this  rapidly  increasing  disproportion,  a  sufficient  reason  upon  the 
same  principles  of  self-protection,  to  j)revent  tlie  introduction  of  slaves  as  merchan- 
dise.' In  looking  at  the  condition  of  •JKt  state,  it  was  obvious  that  the  dispropor- 
tion was  increasing  in  an  alarming  ratio,  that  the  slaves  already  outnumbered  the 
whites  of  the  whole  state,  and  in  many  adjacent  counties  three  to  one  ;  and  in  many 
patrol  districts,  more  than  twenty  to  one.  Who  will  dare  to  say,  thai  there  was  no 
danger  in  permitting  this  disproportion  to  go  on  rapidly  augmenting,  and  that  self- 


I 


% 


\xx 


Grotii:.^  et  ah  v.  Slavgkter. 


preservation  might  not  demand  the  prohibition  of  the  traffic?  And  vho  was  to 
judge  of  this  internal  danger,  and  to  guard  against  it,  except  the  state  in  which  it 
existed  P 

If  a  state  cannot  prevent  its  becoin'ng  a  refuge  of  insurgents,  the  Botii.y  Bay  of 
thti  slave  iiialefivjtors  of  other  states;  i  it  cannot  prevent  tho  introduction  of  HJaves 
of  a  class,  and  under  nircunistaiices,  and  in  a  disproportion  inviting  tiie  overt!  row 
of  its  laws,  and  the  massacre  of  its  freemen  ;  if  it  must  ber-.me  one  vast  neirro  quar- 
ter, with  only  great  and  extensive  plantations,  superintended  by  one  oicseer,  and 
owned  ti)o  often  by  absentee  musters;  it  does  not  possess  tlie  power  t  >  guard  the 
state  ajfainst  domestic  violence  or  maintain  internul  tranciuillity.  and  iti^  not  a  state 
and  possesses  no  one  reserved  rigiit,  or  attribute  of  sovereigr  f  \',  if  it  is  tlius  de- 
spoiled of  the  power  of  self-preservation.  The  cases  of  comparative  damriT,  above 
cited,  may  differ  in  degroe,  but  in  degree  only,  and  not  in  principle.  If  then,  in- 
ternal tranq.iillity  ;  and  self-prctection  be  legitimate  end.s  of  state  legislaiinn,  and  if 
such  prohibition  of  the  introduction  of  slaves  as  merchandise,  be  one  of  tin-  i.ieans 
to  effect  these  ends  and  purpose,  if  tlii'  p'jrpose  is  lawful  as  an  oliject  wf  state  legis- 
lation, who  can  say  that  these  means  ave  not  adapted  to  the  end,  and  cali  ulalcd  to 
secure  the  object.'  Is  it  not,  perhap-,  the  only  means  suitable  to  '.he  case,  cr  at  all 
events,  where  there  is  a  choice  of  iiiiii.  i  b  ,■  the  state,  is  it  .n  it  one  of  those  me  ns 
witliin  the  range  of  state  authoriiy,  to  •.  liict  the  legitimate  iMUjiose  of  guarding 
Tgainst  i'omestic  violence.' 

Thesf  principles  are  settled  in  our  favour  in  Mi!.i'-<  Case,  11  Peters,  102,  wlum 
tiii.s  court  decided,  that  an  act  of  New  York,  e.tcludir  >■;  vnnjuMS.  v,as  cony'itutional. 
In  iriviiig  tlie  opinion  of  the  court,  Jnd^re  Harbour  said  :  '•  Bui  how  cu?!  fins  apply 
to  jiii.-ifK  '  Tliey  are  not  the  suiijects  ol'  (;.)mmprne,  unJ  -o'  iieing  imporlfd  goods, 
cannr'.  i  i.i'  within  a  train  of  rea-miing,  founded  on  the  c.  r.^tincliun  of  a  power 
given  to  coiio^ress  to  regulate  cotniai-rce,  and  (he  iirohibit'iiru  lo  the  -jI  ites  from  im- 
posing a  dutv  on  imported  go(7ds."  '•  The  power  to  prisw  inspection  lavi's  involves 
the  right  to  I'Vi'iiine  articles  which  are  imported,  and  are  therefore  directly  the 
subjects  of  coiiiiucrce  ;  ;ind  if  any  of  them  are  found  to  be  unsound  or  infectious,  to 
cause  them  to  be  removi  ].  or  evna  destroyed  "  "  We  think  it  as  competent,  and 
as  necessary,  for  a  state  to  iiroviile  prccniitioinn  ij  measures  against  the  moral  pesti- 
lence of  paupsrs,  vagabond  ■  i^nd  possibly  convicM,  as  it  is  to  guard  against  the 
physical  pestilence  which  may  i.rise  from  unsound  and  infectious  articles  imported, 
or  from  a  ship,  the  crew  of  w);i-li  may  be  labouring  under  an  infectious  disease." 
Judge  Thomson  said  :  "  The  powrr  to  direct  the  renmval  of  gunpowder,  is  a  branch 
of  the  police  power,  which  unques  .nably  remains,  and  ought  to  remain,  with  tho 
states.  Tlie  state  law  here  is  broi:  .lit  to  act  directly  on  the  article  imported, 
and  may  even  prevent  its  Jandin^,  bee  luse  it  might  endanger  the  jmhlk.  snfely." 
"  Can  any  thing  fall  more  directly  within  the  police  power,  and  internal  regulation 
of  a  state,  than  that  which  cncerns  the  care  and  management  of  paupers,  or  con- 
victs, or  any  other  class  <,{  d;'  criplion  of  jiersons,  that  may  be  thrown  into  t'le 
country,  and  likelij  to  eiulaii'/er  lis  snfctij?"  And,  he  adds,  the  state  may  exclude  all 
persons  whose  admission  would  ^^  endanarrits  safelij  or  security."  Judge  Baldwin, 
in  his  concurring  opinion  (Baldwin's  Views.)  181,  says:  "On  the  same  principle, 
by  which  a  state  may  prevent  the  intrnduction  of  infected  persons,  or  goods,  and  arti- 
cles dangerous  to  the  persons  or  properly  of  its  citizens,  it  may  exclude  paupers,  who 
will  add  lo  the  burdens  of  taxation,  or  convicts,  who  will  corrupt  the  morals  of  the 
people,  threatening  them  with  more  evils  than  gunpowder  or  disease."  He  adds,  "  if 
there  is  any  one  case  to  which  the  following  remark  of  this  court  is  peculiarly  appli- 
cable, it  is  this  :  "  It  does  not  appear  to  me  a  violent  construction  of  the  constitution, 
and  is  certainly  a  convenient  one,  to  consider  the  power  of  the  states  as  existing  over 
such  cases  as  the  laws  of  the  Union  may  not  reach."  (4  Wheat.  195.)  "  But  if  the 
state  (in.^pection)  law  imposes  no  tax  on  imports  or  exports,  the  prohibition  does 
not  touch  it,  either  by  requiring  the  consent  of  congress,  or  making  the  law  subject 
to  its  revision  or  control."  "  The  state  (in  excluding  paupers  or  convicts,)  asserts 
a  right  of  self-protection."  "  Poor  laws  are  analogous  to  health  ;  quarantine  and 
inspection  laws,  all  being  parts  of  a  system  of  internal  police,  to  prevent  the  intro- 
duction  of  what  is  dangerous  to  the  safety  or  health  of  the  people." 


Groves  et  ah  v.  Slavghter. 


Ixxl 


Here  are  important  principles  established,  and  many  of  them  cited  from  the  ' 
previous  o|)iniuns  of  Chief  JuBtice  Mnrbhall.  First,  a  stute  law,  excluding  the  in- 
troduction of  convicts  or  paupers  from  other  states  is  constitutional;  so  are  health 
laws,  and  inspection  laws,  and  all  laws  of  an  analogous  character,  excluding  dan- 
gerous articles  or  persons.  The  principles  on  which  these  laws  are  founded,  are 
diroctlv  n!i;)licable  to  tlie  case  before  us  ;  and  altlionirh  the  laws  may  have  a  "  con- 
sideiariK)  influence  on  commerce,"  or  "operite  directly  on  the  subjects  of  coni- 
nstrco,"  t'l;  y  do  i>i)t  spring  from  that,  but  from  a  higher  source,  the  [ire-exisling 
c.id  Mudcls^Tateil  power  of  a  slate,  and  are  not  an  exercise  of  the  ])ower  to  regulate 
f  'iirnerce  union  :  tSii-  stutes.  That  they  are  founded  on  the  right  of  "  self-protec- 
linn"  "J  oiicb  stf-c  ,  .'u  right  to  guiird  iiirainst  "  moral  or  physical  pestilence" — to 
'  t'.f  ,',.-oy:  •  reiiiuv  '  or  *'  prevent  the  binding"  of  gniiitowder  and  oIIut  danger- 
ous articles  ;  to  e.t'.iudo  any  thing  which  "  might  endanger  the  puljlic  salely  ;"  to 
prevent  tlie  introduction  not  only  of  paupers  and  convicts,  but  that  "  the  principle 
involved  in  it,  mupt  embrace  every  dtsrripliun  which  may  be  liiought  to  aulanfrtr 
the  siifilij  and  security  of  the  country,"  or  that  may  "  threaten  '  a  stale  "  with 
iiore  evils  thr .'  gu.;  ovvder  or  disease,"  and  to  "  all  regulations  of  internal  police." 
We  find  loo,  t;iat  uiide;  the  power  of  a  stale  to  "  rrs^iiliilc  puuperism  therein,"  is 
embraced  th'^  j<ower  to  exclude  paupers  from  other  states  ;  and  upon  the  same  prin- 
ciple 1'  right  nf  a  state  to  regulate  slnrcri/  therein,  would  include  the  right  to 
t'/icludt  ■Mves  fr-iai  other  states;  and  if  the  power  to  exclude  exists,  it  carries  the 
pov.'er  to  prescribe  the  terms  of  admission.  And  the  principle  of  the  law  is  the 
same  in  all  these  cases. 

We  have  seen  too,  that  the  power  of  congress  to  regulate  commerce  does  not 
extend  to  "persons;"  and  it  1ms  been  shown,  that  slaves  are  so  regarded  and 
described  in  tho  constitution.  But  ev<:n  if  they  were  "  the  subjects  of  commerce," 
if  their  introduction  "  might  endanger  the  public  safety,"  the  slate  lias  the  power 
to  exclude  them.  Thus,  infected  articles  or  vessels  can  be  excluded,  even  where 
it  is  only  apprehended  that  there  may  be  danger.  So  also,  to  exclude  gunpowder 
or  similar  articles,  yet  they  are  certainly  articles  of  commerce  ;  but  the  power  of 
the  state  to  guard  the  public  safely  being  a  higher  pow<  r  than  that  of  the  govern- 
ment to  regulate  commerce,  all  such  slate  laws  ar  of  paramount  authority, 
although  they  may  have  a  "  considerable  influence  on  commerce." 

Here,  too,  it  is  established,  that  inspection  laws,  where  no  tax  is  imposed, 
although  they  may  act  both  on  imporfiilion  and  crpnrlutivn,  are  not  an  exception 
from  Ihe  power  of  congress  to  rcgubite  commerce,  but  rights  pre-existing  in  every 
state,  and  not  granted  by  the  consliliitinn. 

Here,  loo,  the  principle  which  Chief  Justice  Marshall  conceded  in  4  Wheaton, 
195,  that  it  is  a  i)roper  rule  "  to  consider  the  power  of  the  stales  as  existing  over 
such  cases  as  the  laws  of  the  Union  may  not  reach,"  is  quoted  and  adiriiied  by 
Justice  Baldwin.  If,  then,  as  at  least  one  of  our  opponents  admits,  the  power  to 
prohibit  this  transportation  and  sale  of  slaves  from  state  to  state  does  not  exist  in 
congress,  it  must  remain  in  the  slates.  If  not,  it  is  annihilated,  and  the  slave 
trade  perpetuated  liy  the  constitulion. 

No  matter  in  what  fearful  numbers  the  slaves  of  very  many  states  may  he  in 
the  course  of  introduction  from  many  into  one  of  the  slave-holding  slates  by 
the  slave  traders;  no  matter  how  iniininent  the  danger,  there  is  -:u  nowei  any 
where  to  prevent  it,  unless  indeed  a  state  where  the  slaves  prepri derate,  ius";i'-fi 
upon  her  own  destruction,  and  emnncipates  at  once  all  the  slaves  within  her  limits. 
And  was  such  the  provision  made  in  the  constitution  of  iIk  Union,  and  assented 
to  by  the  slave-holding  states'  Did  they  consent  to  the  alternative,  you  must  at 
once  emancipate  all  your  slaves,  or  perpetuate  the  slave  trade  within  your  limits; 
you  must  either  have  no  slaves,  or  all  that  m;iy  be  introduced  by  traders  No  one 
would  have  dared  to  make  such  a  proposition  in  the  convention  which  framed  the 
constitution;  no  one  of  the  slave-holding  stales  would  have  assented  to  it;  and  had 
such  a  pi  iposition  been  seriously  entertained,  it  would  have  dissolved  the  conven- 
tion. Indeed,  such  an  idea  is  now  for  the  first  time  announced  ;  for  I  have  called 
in  vain  for  the  production  of  a  single  suggestion  to  that  effect,  by  any  one  pre- 
ceding the  argument  of  this  case.     It  is  a  discovery  made  by  our  opponents,  and 


Ixxii 


Groves  et  al.  v.  Slaughter. 


11 


I 


is  even  more  preposterous  and  humiHating,  and  no  less  dangrerous  to  the  South, 
than  the  power  of  absolute  prohibition  claimed  by  the  abolitionists  to  be  vested  in 
congress.  Indeed,  that  is  the  consequence  of  this  very  extraordinary  position,  for 
if  congress  can  thus  nullify  the  state  law  under  the  power  to  regulate  commerce 
among  the  states,  we  have  seen  it  settled  on  the  very  authority  relied  on  by  our 
opponents,  that  this  power  is  "  supreme  and  exclusive,"  as  "  full  and  plenary"  as 
if  vested  in  "  a  single  goveriuiieut;"  that  it  is  a  power  to  "  prescribe  the  rules"  by 
whicii  commerce  siiall  be  conducted,  the  power  to  "  limit  and  restrain"  it,  and  to 
"  embargo,"  vviiich  is  to  prohihit. 

If  we  will  look  at  tlie  nature  of  the  institution  of  slavery,  we  will  see  conclusive 
reasons  against  the  extension  of  the  commercial  power  to  this  subject.  Slavery  is 
a  local  institution,  existing  not  by  virtue  of  the  law  of  nations,  or  of  nature,  or  of 
the  common  law,  but  only  by  the  authority  of  the  municipal  law  of  the  state  in 
wli.'ch  it  exists.  It  is  secured  by  the  supreme,  exclusive,  pr<  -existing  and  undele- 
gated power  of  each  state,  and  not  by  the  feeble  tenure  of  any  dependence  upon 
the  aulliority  of  congress. 

In  tile  case  of  Harvey  v.  Decker  &  Hopkins,  Walker'-,  Reports,  36,  the  supreme 
court  of  Mississippi  declare,  that  .slavery  does  not  exi?-  by  "  the  laws  of  nature  ;" 
and  they  add,  "  it  exists  and  ran  uiilij  exist  tlirou!>h  municipal  regulations."  The 
same  court,  in  Jones'  Case,  Walker's  Reports,  83,  say  :  "  In  the  constitution  of  the 
United  States  slaves  are  expressly  designated  as  persons:"  and  they  add,  "the 
right  of  the  master  exists,  7iot  by  force  of  the  laic  of  nature  or  nations,  but  by  virtue 
only  of  the  positive  Una  of  tlie  state."  Such  is  the  settled  law  of  Mississippi  twice 
unanimously  pronounced  by  her  supreme  tribunal. 

The  same  doctrine  has  been  pronounced  by  tlie  supreme  court  of  all  the  states 
where  tlie  question  has  been  detonnined.  Thus,  in  the  case  of  Lunsford  v. 
Coquillon,  14  Martin's  Reports,  404,  the  supreme  court  of  Louisiana  declare,  "  the 
relation  of  owner  and  slave  in  the  staios  of  this  Union,  in  which  it  has  a  legal 
existence,  is  a  creature  of  the  viunicipal  lavj."  See  Law  of  Slavery,  368  ;  Story's 
Conflicts  of  Laws,  92,  L»7. 

The  supreme  court  of  Kentucky  have  declared,  that  "  slavery  is  sanctioned  by 
the  laws  of  this  state,  but  we  consider  that  as  a  right  existing  by  a  positive  law  of 
a,  municipal  character,  without  foundation  in  the  law  of  nature."  Rankin  v. 
Lydia,  3d  Marsh.  470,  and  this  is  an  acknowledged  doctrine  of  the  common  law. 
2  B.  &,  Cres.  448  ;  3  D.  &  Ry.  679  ;  20  State  T.  1 ;  10  Wh.  120  ;  Com.  v.  Aves, 
19  Pick.  Law  of  Slavery,  357,  363,  367,  368.  This  court  have  said,  that  "  The 
sovereignty  of  a  state  extends  to  eriry  thing  which  exists  by  its  own  authority,  or  is 
introduced  by  its  permission."  6  Wh.  469;  4  Peters,  564;  Bald.  Const.  Views,  14. 
Slavery  exists  only  by  the  autliority  of  a  state,  it  is  introduced  only  by  its  permis- 
sion ;  and  to  contend  that  it  may  not  be  introduced,  but  may  be  extended  against 
the  will  of  a  state,  is  strangely  incongruous.  The  principle  here  quoted  has  been 
applied  in  restriction  of  the  commercial  power. 

In  1824,  it  was  attempted  to  apply  the  commercial  power  of  congress  to  the 
New  York  Canals,  in  relation  to  boats  passing  through  them,  or  entering  them 
from  state  to  state,  by  requiring  tonnage  duties  and  entrance  fees.  Tliat  this 
power  could  have  extended  to  voyages  commencing  in  one  state,  and  touching  at, 
or  terminating  in  another,  is  decided  by  this  court;  but  it  does  not  extend  to 
canals  created  by  the  state  authority.  New  York  Leg.  Res.  8th  Nov.  1S24  ; 
Debate  U.  S.  Senate,  19th  May,  1826  ;  3  Cowen,  755.  Now,  the  only  reason  for 
this  distinction  is,  that  canals  are,  and  rivers  are  not  created  by  a  state ;  otherwise 
the  power  to  regulate  commerce,  which  embraces  navigation  as  well  as  traffic, 
must  have  included  them.  Now,  this  power  is  "supreme  and  exclusive,"  and  if 
it  extends  to  slaves,  made  so  only  by  state  authority,  it  must  embrace  all  the 
canals,  and  perhaps  all  the  rail-rorJs  of  every  state.  Property  in  slaves,  so  far  as 
it  exists,  is  created,  not  by  the  la^v  of  nature  or  of  nations,  but  solely  by  the  power 
of  the  state,  and  may  be  abolished  at  its  will ;  differing  in  these  essential  particulars 
from  other  property.  So  as  was  said  as  to  other  property  created  by  the  authority 
of  a  state,  in  state  or  bank  stocks,  or  bfink  notes,  or  lottery  tickets.  It  is  a  principle 
recognised  in  all  the  states,  and  by  this  court,  that  their  introduction  from  other 


Grotea  et  al.  v.  Slaughter. 


Ixxiii 


BtateB,  for  sale  or  circulation,  may  be  prohibited  by  any  state,  notwillutandin^f  she 
may  have  state  or  UanU.  stocks,  or  baiiii  notes,  or  lotteries  of  her  own,  and  tiiese 
luuy  be  the  subjects  of  lawful  ownerslii|>  and  cunun»-rce  in  the  state. 

This  power  being  ciuinied  under  tlie  authority  of  congress  to  regulate  com- 
merce, the  first  congress  wiiich  as.smnbled  in  1 78!),  as  well  as  every  subsequent 
congress,  would  have  possessed  pleiiuiy,  supreme  and  exclusive  powerover  the  whole 
subject  of  regulating  tiiu  IranHportalion  ol'  slaves  froui  slate  to  state.  Why,  then, 
during  the  lap.se  of  more  tiiun  half  a  century,  has  congress  never  exercised  this 
power,  which  was  an  exclusive  and  not  a  concurrent  power.'  Many  of  the  great 
men  who  formed  the  constitution,  were  nuwnbers  of  congress  for  many  years  suc- 
ceeding its  adoption.  Why,  then,  did  they  never  e.xeruise,  or  even  propose  to 
exercise  the  power  in  question  .'  They  were  called  upon  by  petitions,  immediately 
after  the  organization  of  the  governnient,  to  exercise,  both  as  among  the  states  and 
as  to  foreign  nations,  the  entire  power  which  they  possessed  on  this  subject.  Why 
did  they  not  then  exercise  this  power  ';  IJecause,  it  was  then  universally  acknow- 
ledged that  congress  possessed  no  such  j)ower. 

In  17t)4,  petitions  were  again  transmitted  by  the  Quakers  and  others  to  con- 
gress, calling  on  that  body  to  exercise  all  its  constitutional  powers  over  the  subject ; 
and  these  memorials  were  rel'erred  to  a  comir.iltee  of  the  house,  consisting  of  Mr. 
Trumbull,  Mr.  Ward,  Mr.  Giles,  Mr.  Talbot,  and  Mr.  (iroves,  all  members  from 
non-slave-holding  states,  except  Mr.  Giles,  of  Virginia;  the  select  couimiltee, 
according  to  parliamentary  rule,  being  favourable  to  the  object  of  the  memorialists 
to  the  extent  of  the  po'vers  vested  in  congress.  This  committee,  thus  composed, 
clearly  repudiated  the  power  now  claimed  by  our  opponents,  but  brought  i»;  an  act 
"  to  prohibit  the  carrying  on  the  slave  tiadi;  from  the  United  Slates  to  any  foreiirn 
place  or  country,"  which  act  became  a  law  on  the  22d  March,  1794.  2d  Vol. 
Laws  United  States,  3S3. 

These  proceedings,  corroborated  by  Mr.  Giles's  statement  as  a  member  of  the 
committee,  ought  to  be  conclusive.  In  the  debates  of  the  Virginia  convention  of 
1829,  1830,  page  2  IC,  we  find  Mr.  Giles  using  the  I'ollnwing  language  on  the  lOtli 
Nov.  1829  :  "  Mr.  Giles  then  referred  to  a  memorial,  which  was  presented  to  con- 
gress by  the  representatives  of  several  societies  of  Quakers,  ile  imjipened  to  be  u 
member  of  the  committee  to  whom  the  subject  was  rel'i-rred  lie  had  relied  on 
the  declaratory  resolution,  in  the  negotiation  which  ho  htvl  to  carry  on  with  the 
Quakers.  j3ll  i.'te  committee  lotre,  in  principle,  infacuur  of  Che  mcnsure ;  but  it  was 
his  duty  to  satisfy  these  persons,  that  congress  had  no  right  to  interfere  with  the 
subject  of  slavery  at  all.  He  was  fortunate  enough  to  satisfy  the  Quakers,  and 
they  agreed,  that  if  congress  would  pass  a  law,  to  prohibit  the  citizens  of  the 
United  States  from  supplying  I'oreign  nations  with  slaves,  they  would  pledge 
themselves,  and  the  respective  societies  they  represented,  never  again  to  trouble 
congress  on  the  subject.  The  law  did  pass,  and  the  Quakers  adhered  to  their 
agreement.  He  did  not  know  whether  or  not  the  documents,  on  the  subject  of 
this  negotiation,  were  still  in  existence;  but  he  believed  they  had  been  filed  away 
with  other  papers. 

"  Subsequently,  an  act  was  passed  prohibiting  the  introduction  of  slaves  into 
the  United  States,  in  which  this  principle  was  again  touched  in  a  more  specific, 
but  a  different  form.  It  was  again  his  fortune  to  be  on  the  committee  to  whom 
that  subject  was  referred,  and  he  drew  up  two  ])iovisoes  to  a  bill  then  pending  before 
congress,  for  prohibiting  the  introduction  of  slaves  into  the  United  States  after  the 
year  1807  ;  the  object  of  which  was  to  draw  a  distinct  line  of  demarcation  between 
the  powers  of  congress,  for  prohibiting  the  introduction  of  slaves  into  the  United 
States,  and  those  of  the  individual  stairs  and  territories.  It  was  then  decided,  by 
an  unanimous  vote,  that  when  slaves  were  brought  within  the  limits  of  any  state,  the 
power  of  congress  over  them,  ceased,  and  the  power  of  the  state  began  the  mometit 
they  became  within  those  limits."  Here  is  the  clearest  testimony  on  the  subject, 
that  as  to  the  slaves  "  brought  within  the  limits  of  any  state,"  congress  had  no  power 
whatever;  and  that  such  was  the  "unanimous"  opinion  of  the  House  of  llepresen- 
tatives  in  1794  and  1807. 

The  act  of  the  10th  of  May,  1800,  3  L.  U.  S.  382,  prohibits  citizens  or  residents 
o 


Ixxiv 


Groves  et  ah  v,  Slaughter» 


of  the  United  States  from  owning  or  terving  in  veiiolt  engaged  In  the  fureign 
itlave  trade,  forbidden  by  the  act  of  1794.  The  uct  of  '2Hth  February,  lMO:t,  3  L. 
11.  B.  529,  proliibitii  llie  bringing  of  uny  negroeH,  niiilattoes,  ur  otiier  perBoiii  of 
colour,  not  being  nativeit,  citizenii,  or  regintered  Heiiinen  of  the  United  States,  into 
any  ulate  where  ttie  hiwa  of  the  atule  proliibited  Huch  iniportntion.  Thin  act 
e.xtended  to  free  negroBH  nn  well  aa  HliiveH,  and  wuh  a  |irncticul  construction  of  tha 
iMtclnuriH  of  the  !)th  Hection  of  the  Itit  article  of  the  connliluti<ii,  applying  that 
clause  to  such  Htates  an  did  not  "  think  proper  to  admit"  the  persoiiti  pruhiliiled  by 
that  act,  the  term  "  migration"  being  applied  to  free  negroes,  and  ''  iniportution" 
to  Hl.iveii.  Then  came  the  uct  of  2d  March,  1807,  4th  L.  U.  ti.  94,  (tc  go  into 
ert'ect  on  the  IhI  of  January,  1808,  the  time  designated  in  the  Otli  section  of  the  Ist 
article  of  the  constitution,)  which  prohibits  the  introduction  from  abroad  into  the 
United  Slates  of  slaves  under  various  penalties.  The  act  of  2()lh  April,  1818,  6tli 
L.  U.  15.  ',i2'),  enforces  the  lust  act  chielly  by  devolving  the  proof  on  the  party 
accused,  that  the  coloured  persons  had  not  been  brought  in,  in  contradiction  of 
that  liiw.  Tile  act  of  :{d  March,  1819,  (ilh  !..  U.  S.  1:53,  authorizes  the  employ- 
ment of  tiie  armed  vessels  of  the  United  States  in  ti'lorcing  the  previous  acts. 
The  act  of  15th  May,  1820,  (ith  1j.  U.  S.  529,  makes  tin  foreign  slave  trade,  before 
])rohibite(l,  inrarij,  and  inflicts  upon  uU  concerned  in  it  the  punishment  of  (Uutli  ; 
and  no  less  tiian  nineteen  various  laws,  enforcing  or  |>roviding  money  to  enforce 
this  act,  have  been  since  passed  by  congress  down  to  the  present  period.  No  ledS 
than  thirty  laws  have  been  passed  by  congress  on  the  subject  of  the  slave  trade, 
and  no  less  than  fifty  rei)oits  made  in  tlie  two  houses  of  congress  from  1791  to  the 
present  period  ;  yet  no  one  act  embraces  the  slave  trade  between  the  states,  except 
such  as  acknowledge  the  binding  force  of  state  laws,  and  require  conformity  on  the 
part  of  vessels  of  the  United  States  and  their  owners  to  those  laws,  (as  they  do  to 
the  health  laws  of  the  states;)  nor  in  anyone  f)f  these  numerous  rejiorts  was  it  ever 
pretended,  that  congress  possessed  the  power  now  claimed  L  our  ojiponenl.s,  but 
in  all  these  acts  or  reports,  it  is  either  repudiated  directly,  or  by  implication.  And 
if  congress  did  not  act  in  1791,  or  1794,  or  IBO.'J,  on  this  subject,  why  not  in 
1807 — 8,  or  in  1818,  1819,  182((,  or  on  the  numerous  occasions  upon  whicli  they 
liave  since  legislated  on  this  subject?  Not  only  why  did  they  not  act  by  tlie  pas- 
sage of  laws  regulating  or  prohibiting  this  slave  trade  between  the  states,  but  why 
no  proposal  by  any  member  of  congress  to  act,  and  this  universal  concehsion  that 
the  power  was  not  vested  in  the  general  government  ?  Such  has  been  the  ne<rative 
action  of  congress  in  regard  to  a  power  which  is  claimed  to  be  vested  exclusively 
in  the  general  government.  But  not  only  has  congress  declined  the  exercise  of 
this  power,  now  claimed  to  be  vested  exclusively  in  the  irovernnient  of  the  United 
States,  but  congress  has  repeatedly  recognised  the  existence  of  this  power  as  vested 
in  the  states  alone. 

On  the  19th  April,  1792,  the  constitution  of  the  state  of  Kentucky  was  formed. 
On  the  <jth  November,  1792,  CI  en.  Wasliington,  then  President  of  the  United 
States,  delivered  his  annual  address  to  the  two  houses  of  rongress,  in  which  he 
said  :  "  The  adoption  of  a  constitution  for  the  state  of  Kentucky  has  l>een  noli  lied 
to  me.  The  legislature  will  share  with  me  in  the  satisfaction  which  arises  frnui 
an  event  interesting  to  the  happiness  of  the  part  of  the  nation  to  which  it  relates, 
and  conducive  to  the  general  order."  And  on  the  succeeding  day  he  transmitted 
to  the  two  houses  of  congress  in  a  special  message,  "  a  copy  of  the  coiis'tilulion 
formed  for  the  state  of  Kentucky." 

On  the  9th  of  November,  1792,  the  senate  of  the  United  States  responded  to  the 
address  of  the  President,  in  which  they  say,  "  The  organization  of  the  government 
of  the  state  of  Kentucky,  being  an  event  peculiarly  interesting  to  a  pail  of  our 
fellow  citizens,  and  conducive  to  the  general  order,  affords  us  j)eculiar  siiisfac- 
tion."  On  the  lOtli  of  November,  1792,  the  house  of  representatives  res]  mded 
through  a  committee,  of  which  Mr.  Madison  was  chairman,  to  the  address  of  the 
President,  in  which  they  say,  "  The  adoption  of  a  constitution  for  the  state  of 
Kentucky,  is  an  event  on  which  we  join  in  all  the  satisfaction  you  have  expressed. 
It  may  be  considered  as  particularly  interesting,  since,  besides  the  immediate 
benefits  resulting  from  it,  it  is  another  auspicious  demonstration  of  the  facility  and 


■«■  * 


i.M 


Graves  et  ah  ».  blaughter. 


Ixxv 


i  a  » 


■ucceflR,  with  which  an  enliiifhtened  people  ia  rapable  of  providing,  by  free  and 
deliheratu  pliiiiH  otf^ovurniimnl,  for  their  o\<.  n  Hut'ety  uiiil  niippineMS." 

Hucii  weru  th«  Hulfiiin  I'oriitti  uiid  HuriutionH  under  which  thiH  cumititiition  of  the 
state  of  Keulucity,  the  lirwt  of  the  new  wliiteit,  was  liien  n-ceivt-d  \>y  tht  ''resident 
and  two  hou«es  of  con^rruNs,  and  llin  two  members  sujjsfiiuently  udniill  ndur  it 

as  re|)ri-MentiiliveH  of  the  sliile.  Now  tlnn  very  conNlitiition  contains  pri/viHions  as 
to  siuvi'S  precisely  siniihir  to  those  embodied  in  the  constitution  of  Mississippi,  and 
amonjr  othtMs,  after  prohiliitini^  emancipation  of  slaves  by  the  legisliilore,  tliey  suy, 
'•  they  (the  leifisluture)  sluiU  Iiuck  full  jiowcr  to  prevent  slaves  from  beinjj  brought 
into  this  statu  as  merchandise."  1  liittell's  Laws  of  Kentucky,  52.  Here  is  thin 
constituti'irt,  with  this  cliiii.se,  thus  solemnly  sanctioned  nt  that  early  period,  alnir)st 
cotemporatieoiis  with  the  orj^ani/.atioii  of  the  ifovernment,  by  Georffe  Wiishinifton, 
the  I'resident  of  tlie  cunveiition  wlii<  h  firmeii  the  coiistilulion  of  the  Union,  and 
by  John  l.un^rilon  and  Nioliolas  dilman,  of  New  Hampshire  ;  lliifus  King  and 
Klbridire  Gerry,  of  Massachusetts  ;  Ro(^er  Sherman  and  Oliver  Ellsworth,  of  Con- 
necticut ;  Jonathan  Dayton,  of  New  Jersey  ;  Robert  Morris  arul  Thomas  Fitzsim- 
mons,  of  Pennsylvania  ;  Georjrc  Head,  J(din  Uickiiison  and  Uich.ird  Uassett,  of 
Delaware  ;  James  Madison,  of  \  irirjnia  ;  lluirh  Williamson,  of  North  Carolina  ; 
Pierce  Uutler,  of  South  (^urolina  ;  William  Few  and  Abrahiir:i  JJaldwin,  of 
Georiria;  all  members  of  the  conirress  which  received  and  sanctiniied  this  consti- 
tution of  Kentucky,  and  all  members  of  the  convention  which  framed  the  consti- 
tution of  the  Union  ;  thus  constitutiii:;,  in  Ikat  ron^^rr^x,  a  repri^siMitation  from  tea 
of  the  tin  Ire  states  which  formeil  the  constitution.  And  yet  this  coustitutioii  thus 
received  and  sanctioned,  contiiins  a  clause  directly  riiputfiiant  to  the  constitution 
of  the  ('lilted  States,  and  authorizes  that  state  to  violate  that  instrument,  by  an 
authority,  as  maintained  by  our  opponents,  to  exercise  that  commercial  power  as 
to  slaves,  which  was  vested  exclusively  in  coni>ress,  and  prohibited  to  liio  states. 
But  no  one  entertained  that  opinicm  in  179-,  when  ten  of  the  twelve  slates  which 
formed  the  con.stitution  of  the  Union  were  represented  in  consiress.  Sup])ose,  in 
lieu  of  tliis  clause  to  proiiibit  the  introduction  of  slaves  as  merchandise,  the  consti- 
tution of  Kentucky  had  contained  a  delectation  of  power  to  the  legislature  of  that 
state,  to  "  regulate  commerce  between  that  state  and  all  other  states,"  or  "to  coin 
money,"  or  to  "  declare  war,"  or  to  exercise  any  other  power  vested  exclusively  in 
conjrreiss  ;  who  believes  that  such  a  constitution  could  ever  have  received  the 
flanction  of  Gen,  Washiui^ton,  Mr.  Madison,  James  Monroe,  and  all  the  other  great 
men  of  the  conjrress  of  1792,  or  that  the  state  could  ever  have  been  admitted,  pre- 
pared and  organized,  to  subvert  the  constitution  of  the  Union,  by  that  very  execu- 
tive and  congress  which  was  solemnly  sworn  to  preserve  and  maintain  that 
instniiiient  '  And  yet,  i)y  the  argument  (jf  our  opponents,  this  very  constitution  of 
Kentiieky,  in  this  clause  as  to  slaves,  contains  a  delegation  to  the  state  of  the 
power  vested  exclusively  in  congress  to  regulate  commerce  among  the  states.  To 
every  unprejudiced  mind  this  authority  ought  to  be  conclusive. 

On  the  Ist  .March,  J817,  an  act  of  congress  was  passed  to  enabb  the  people  of 
the  western  part  of  the  territory  of  ^Ussissippi  "  to  form  a  constitution  and  state 
government."  6  L.  U.  S.  175.  By  which  act  it  was  reijuired,  as  a  condition  pre- 
cedent of  admission,  that  this  constitution  should  not  be  "  rc/ji/4'«««<"  to  the 
"  constitution  of  the,  Uiiitvd  Stales."  On  the  4th  December,  1817,  this  constitut'on 
was  sulimittr.d  to  both  liou.scs  of  congress — Sen.  J.  21;  House  J.  21;  and  on  the  10th 
December,  1817,  this  constitution  being  declared  to  be  in  "  pursuance"  of  the  act 
before  quoted,  was  admitted  not  to  be  repugnant  to  the  constitution  of  the  United 
States,  and  the  state  received  as  a  member  of  the  Union;  yet,  this  very  constitu- 
tion contained  the  clause,  that  "  they  (the  legislature)  shall  have  full  power  to 
prevent  slaves  from  being  brought  into  this  state  as  merchandise."  Here,  then, 
the  very  power  under  which  Mississippi  now  acts,  was  thus  deliberately  conceded 
by  congress  no»  to  be  "  repugnant  to  the  constitution  of  the  United  States." 

On  the  26»"  lugust,  1818,  the  constitution  of  the  state  of  Illinois  was  formed, 
and  althougn  slaves  and  slavery  were  by  the  6th  article  prohibited  to  be  "  hereafter 
introduced  into  the  state" — yet  the  slaves  already  there  were  not  emancipated, 
although  it  was  provided,  that  their  "  children  hereailei  born  shall  be  free,"  and 


I 

i 


Ixxvi 


Groves  et  al.  v.  Slau/c^htcr. 


the  inlrodiiclion  of  alavei  from  nny  ntlier  ilalM,  evi'n  "  to  l»«  hired,"  wnn  proliihit- 
(>d.  liy  tli«  olhcini  c<>iihuh  of  IH20,  !MI7  wlnvi'ii  werf  eniiiiit>rntt'd  and  rfluined 
from  thx  ittiilt*  of  Illiiioi*.  nnd  in  M  10,  IM|  xliivfi^  iirt<  HnuiiiHriiltd  ntid  retiiriit'd 
from  thi)  Nanitt  Htute.  IlliiiniM,  llifii,  niid>>i'  her  conittitution  of  IHIH,  wii-*  to  a 
limited  cxtiuit,  II  Hhivo-hiildiiit;  Htiitf  ;  Iht*  MliiVfN  iilrciidy  there  not  lieiii};  t-inanci* 
|iati>il,  but  tliu  future  inipnrtaliini  l>eiti|;  |>ruhil)itfd,  mid  thn  poHt  iiuti  Ix'inff 
liberated. 

Thix  Hiitiject  in  thii!«  referred  to  in  a  Hpeech  delivered  liy  the  Hon.  Henry  Hnhl- 
yviii,  then  11  rejireHentrttive  iii  eoniriess  froiii  tlie  I'lttslmri;  iliNirict  of  ['eniiny Ivanin, 
and  now  one  of  the  jiiilireN  of  liiiH  court.  In  tlint  Hpeech,  Jiidirc  lliildwin  Hiiid  : 
"  When  tlio  coiiNlitution  of  liliiioiri  wiiti  prcHented  to  iin,  it  wiih  found,  not  to  cun- 
form  to  the  ordinimce  of  17H7,  in  the  ext  lusion  iind  nholition  of  idavery  ;  on  cotn- 
pirinir  their  provisiouH,  tiiey  were  incoiiwi^leiil  :  the  ircntleiiiiin  from  New  York, 
who  moved  this  nmendiiient  lust  yeiir,  olijected  to  the  iidmiHHioii  of  lllinnis  on  this 
HRnoiint;  there  w;ih  ii  Nlior*  liiit  iiii  iiiiiiiiiited  disciis.iion  ;  it  wax  contended.  th:it  the 
urdiiiiitioe  did  not  extend  to  .stdli.i,  mid  wtix  not  biiiiiinir  on  tiiein,  mid  no  this  lioime 
drriilvd  Inj  a  majoritij  of  117  to  11 1  (•"»4  from  the  non-Nliive-lioldinir  Hliites).  In  the  »»>- 
nite.  there  trn.s  no  ohjriiioii.  Illinois  w.is  iiilinitted,  hIic  mid  !iuli:ina  now  li  ive  shiveH, 
and.  iihninjK  hurr  hud  ihnii.  Here  is  ii  precede  ill  in  point,  and  1  hope  will  not  be  without 
its  weiijhtin  the  body  which  iii;i(le  it,  iit  least  with  those  iiiciuberH  whose  rrimeii 
ure  recorded  in  the  journal."  Niles'  Kejj.  vol.  lit,  pnae  ;!().  In  IHIH,  an  well  ax  at 
this  moment,  the  prohibition  of  the  introduction  of  sl.iveB  for  Hale,  is  void  in  that 
Ktiite,  if  it  be  Void  in  iMissis.sipjii ;  for  the  validity  ot'  llie  prohibition  as  a  (|iiestion  of 
power,  Hiindv  c.innot  depend  upon  the  iiiiiiilier  ot' slaves  in  a  stiili*. 

(Jn  the  2il  March,  ISIO,  an  a<'l  pissed  to  eimlile  the  |ieop|i'  of  the  territory  of 
Aliibaiiia  to  liirm  a  constitution  and  sl;ite  ;.'''vernineiit,  (Jth  L.  U.  S.  liiO  JJy  this 
net,  one  of  tiie  conditions  precedent,  on  which  Ihi.s  couHtitiition  was  nuthori/ed  to 
he  formed,  wa.s.  that  it  Hhould  not  be  "  repiiiriiaiit"  to  the  "  coiiHtitution  of  the  United 
ytates,"  On  the  '.ii  Dec.  IHi;),  a  copy  ol'  this  coiistitulion  was  siibiiiilled  to  the 
liniise,  and  referred  to  a  select  committee,  11.  .1.  S  ;  and  on  the  (ith  Dec.  ISl!),  it 
was  also  presented  to  the  senate  of  the  Union,  and  referred  to  a  select  ciiiiimittec, 
S.  J.  6  ;  and  by  a  joint  resolution  of  both  iiouses  of  conjjress,  of  the  1  Ith  Dec.  1819, 
the  constitution  of  Al.'ibama,  being  conceded  to  be  "  in  pursuance"  cd'  the  net 
before  quoted,  and  of  course  "not  re])ii!^naiit  to  the  cnnstitiition  of  the  United 
States,"  Alabama  was  admitted  as  a  member  of  the  Union.  Yet  t!ie  constitution 
of  that  state  contains  the  clause,  that  '■  they  (the  legislature)  shall  have  full  |)ower 
to  prevent  slaves  from  being  broujrht  into  the  state  as  merchandise."  And  here 
again  the  constitutionality  of  this  provision  was  distinctly  admitted  by  the  con- 
gress of  the  United  States. 

In  the  case  of  Missouri,  the  (piestion  wns  <lecided  in  our  favour,  after  a  severe 
conflict.  But  let  it  not  be  supposed,  that  all  who  opposed  the  admission  of  Mis- 
souri as  n  state  of  the  Union,  did  it  upon  the  ground,  that  as  a  slave-holding  stato, 
she  could  not  prohibit  the  introduction  of  slaves  as  merchandise;  for  the  number 
who  maintained  any  such  doctri;ie,  did  not  exceed  half  a  dozen  members,  at  any 
]>eriod  of  this  discussion,  and  it  was  eventually  abandoned,  and  the  objection  was. 
1st  to  admit  Missouri  as  a  slave-holding  stale  at  all,  and  2d  to  that  clause  of  the 
constitution,  which  prevented  "  free  negroes,  and  mulattoes,  from  ctuning  to,  and 
settling  in  this  state,  under  any  pretext  whatsoever."  As  to  the  first,  it  was  con- 
tended that  the  authority  to  admit  new  states  into  the  Union,  was  a  discretionary 
power  vested  in  congress;  and  that  in  the  e.vercise  of  a  sound  discretion,  conirress 
might  make  it  a  condition  of  admission,  that  slavery  should  be  abf)li8hed.  As  to 
the  2d  point,  it  was  urged  that  the  power  to  e.xclude  free  blar'  s,  some  of  whom 
might  be  citizens  and  voters  in  the  several  states,  conflicted  wit.  that  provision  of 
the  constitution  of  the  Union,  in  the  first  clause  of  the  2d  section  of  the  -1th  arti- 
cle, which  declared,  that  "  the  citizens  of  each  state  shall  have  the  same  privi- 
leges and  immunities  as  citizens  in  the  several  states."  The  first  question  was 
decided  in  favour  of  Missouri,  by  the  congress  of  1819,  1820,  and  the  second  ques- 
tion was  not  then  decided. 

By  the  act  of  congress  of  the  6th  March,  1820,  the  people  of  the  Missouri  terri- 


4  ■    ^ 


Grorea  et  al.  v.  Slaughter. 


Ixxvii 


lliit- 

|llM(l 

a 

llMlf 


tory  #eri)  luthorixeil  to"rorm  a  nonilitiitioti  und  «Ute  gorttrnmtnt,"  6th  vol.  L 
\i.  8..  iDS,  liy  this  ant  Nluvery  waa  to  !>«  |>ri)hibit««l  in  ttie  territory  ridded  by 
FruM.e,  ufid«r  tli«  iiitiiio  ol°  LoiiiMiiina,  imrtlt  of  lat.  HH'^  31)',  not  included  in  tlin  atato 
ol'  I'l.  loit."  Hy  lliiN  act  liw  |)«o|)Im  of  tlitt  MiMNouri  turritory  were  authorized  to 
fort"  "  a  oonatilution  and  itule  ){overntneiit.  l'roridiil,l\\al  tli«  nunie  when  formed 
•hall  be  repuhlirttu,  und  not  n/iuirnimt  to  the  ronntitiition  of  titr  I  nitnl  Siiittn,"  und 
tJiH  7tli  N<'i>iii>,i  of  tliiH  uct  wiiH  UN  I'lillowH  :  "  'I'liut  III  cuMH  a  coimlitiition  and  Htate 
governniri,)  Hhull  lie  formed  for  the  |ieo|)ie  of  the  Haid  territory  of  MiHMourt,  the  NUid 
conventiofi  or  re|ireMi'iitutiveH,  an  noon  thcreiifter  an  may  he,  hIiuI'  caiiiie  a  true  and 
att«Hled  copy  of  Huch  conNlittilion,  or  frumc  of  Mtute  );ove'  ii>iieiu,  aM  Mhiill  he  adopted 
ur  provided,  to  he  trunMniilted  to  coii|{ieHM."  'I'hiH  conntiiiition,  '*  in  piirHUunce  uf 
tliiM  uct,"  wuM  formed  on  the  DHh  of  July ,  1820,  and  contuiiied  the  folluwiii|j,  umung 
other  itroviHioiiH  ; — 

20.   The  ^reneral  u.'tHemhIy  HJiali  not  have  power  to  pniiM  lawn  . — 

l8t.   For  the  emaiu:i|ialioii  of  NJaveM,  wiliioul  the  contienl  of  their  owner*: — 

They  nIiuII  have  power  to  puHn  Iuwh  ; — 

"  'I'll  prohibit  the  inlroiluclioii  of  any  itlave  fur  the  purpuae  ofapeculation,  or  ■■ 
an  article  of  trade  or  iiierchiuidiNe." 

it  hIiuII  be  their  duty,  aa  auun  an  may  be,  to  paaa  Hiich  lawa  aa  may  be  necea- 
aary. 

1.  To  prevent  free  neitrroea  and  mulattoeH  from  coming  to,  and  aettling  in  thia 
Btate,  under  any  pretext  whiitever:  and 

The  couMiitiitioii  thuH  formed,  wun  riiiiimittpd  to  both  houaea  of  nongreaa,  and 
referred,  in  Nov,  1M2(),  to  Niteciul  comiiiilli'fH,  wild  reported  in  its  favour,  and  that 
it  was  not  rciiuiinuiU  to  tlic  ion.stUiUion  of  the  I  nitnl  Slutiti.  Ami  now,  then,  it  ia 
believed  not  a  Hin^'le  memlier  ujion  the  diNcuHHion  which  hud  taken  place,  did  aiip- 
))08e  tiiat  Ihia  ciiiuse  prohiiiitiii)r  the  introduction  of  HluveH  as  merchuiuli^e,  waa 
uncoiiHtitutioiial,  but  it  wuh  conli'iidi'd  liy  iiiuiiy,  that  the  Ith  (tluuNu  of  the  2(ith 
section  of  the  ;>d  article,  prevcnliiiif  "free  nejrroes"  coining  into  the  Hiale,  wus 
repugniint  to  the  lat  clause  of  the  2il  Hectioii  of  the  Ith  article  of  the  coii8titutiuti 
of  tile  Union  before  (|U(ited,  ua  to  the  reciprocal  righta  of  citizeiia  in  all  the  statea, 
it  bein!^  contended  that  free  neirroeH  were  citizens  in  some  of  the  Htates.  The 
great  dilliculty  then  arisiiijj  out  <if  this  cliiiise,  the  whole  (|uestion  on  the  2d  Feb- 
ruary, 1.S2I,  was  on  iiiolioii  of  Mr.  t'liiy,  of  Kentucky,  referred  to  a  select  comiiiit- 
tee  of  thirteen,  of  which  he  was  chairiiiuii,  but  ei{.rht  of  whom  were  from  iion- 
elave-liolding  states.  On  tlie  10th  of  February,  Mr.  Clay  reported  from  tliia 
committee,  (le!'larin£f  that  they  had  "  liiniied  their  inquiry  to  the  sinjrle  (|ueslioii, 
whether  the  coustilutioii  which  Missouri  had  formed  for  iierself,  contained  any 
tliiiiir  ill  it,  which  furnished  n  valid  olijection  to  her  incorjtoration  in  the  Union. 
And  on  that  question  lliey  Ihouiflit  that  there  was  iiu  other  pro cision  in  that  consti- 
tution, to  which  coiitrress  could  of  ritfht  take  exception,  but  that  which  mnkea  it 
the  duly  of  the  leirishiture  of  Missouri  to  pass  laws  to  prevent  free  nejrroes  and 
niulattoes  from  gniiii;-  to,  and  settliiifr  in  the  said  state."  After  statiiiir,  that  jiart  of 
the  comuiiltee  believed  this  clause  ''  liable  to  an  interi)relation  rejiuirnant  to  the 
constitution  of  the  United  Slates,  and  the  other  thinking  it  not  exposed  to  that 
objection,"  they  jiroposed  tliiil  Missouri  sliouUl  be  admitted,  on  her  passing  a  law 
exempting  this  clause  from  iiiiy  supposed  interpretation,  wliich  would  prevent  citi- 
zens of  any  of  the  states  fnuii  settling  in  Missouri.  On  the  2d  March,  1821,  con- 
gress passed  a  joint  resoluliou,  providing  for  the  admission  of  the  state  of  Missouri 
into  the  Union  "  u|)on  the  I'liiidameiital  condition,  that  the  4tli  clause  of  the  2(jth 
section  of  the  3d  article  of  the  constitution,  submitted  on  the  part  of  said  state  to 
congress,  shall  never  be  con-strued  to  authorize  the  passing  of  any  law,  and  that  no 
law  shall  be  passed  in  conformity  thereto,  by  which  any  citizens  of  either  of  the 
states  in  this  Union,  shall  be  excluded  from  the  enjoyment  of  any  of  the  privileges 
and  immunities,  to  which  such  citizen  is  entitled  under  the  constitution  of  the 
United  States,"  (i  vol.  L.  U.  S.  890.  The  assent  of  Missouri  was  required  to  thia 
condition,  which  being  afterwards  given,  the  state  was  admitted  into  the  Union. 

Now  the  power  to  prohibit  the  introduction  of  slaves  as  merchandise,  was  just  as 
clearly  granted  in  the  coustitutiou  of  Missouri,  as  the  power  to  prevent  the  ingress 
o2 


51  p 


Ixxviii 


i\  ) 


Groves  et  al.  v.  Slaughter. 


of  free  negroes  or  mulattoes.  It  had  been  expressly  provided  by  congress,  that  the 
constitution  of  Missouri  sliould  not  be  repugnant  to  the  constitution  of  the  United 
States.  That  constitution  was  discussed  in  tiiree  committees,  and  in  the  two  houses 
o''  congress  for  more  tiian  tiiree  months,  and  the  whole  subject,  from  1818,  till 
1821,  and  after  this  full  discussion,  with  an  ardent  desire  on  the  part  of  a  portion 
of  congress,  approaching  an  actual  majority,  to  exclude  Missouri,  if  any  clnnse  in 
her  constitution  should  be  found  repugnant  to  the  constitution  of  the  United  States, 
this  clause  as  to  the  introduction  of  slaves  as  merchandise,  was  distinctly,  and  it 
moy  be  truly  said,  almost  unanimously  conceded  to  be  constitutional,  and  the  only 
proviso  required  by  congress  from  the  state,  was  in  relation  to  the  clause  in  regard 
to  free  negroes.  Surely  this  ought  to  be  conclusive,  so  far  as  the  authority  of  the 
almost  unanimous  voice  of  congress,  on  full  deliberation,  can  go  to  settle  any  ques- 
tion. Amongst  those  who  stand  most  conspicuously  committed  on  the  record,  in 
favour  of  the  validity  of  this  clause  in  the  constitution  of  Missouri,  is  Mr.  Clay,  of 
Kentucky,  now  one  of  my  distinguished  opponents  in  this  case,  for  whose  opinion 
as  a  statesman  and  a  jurist,  as  then  recorded,  I  ask  from  this  cour  all  the  consi- 
deration to  which  it  is  so  justly  entitled.  Of  all  the  members  of  that  congress, 
which  admitted  Missouri  as  a  state  of  the  Union,  no  one  contributed  more  to  that 
result,  than  the  Hon.  Henry  Baldwin,  now  one  of  the  judges  of  this  court,  and  then 
the  representative  from  the  district  of  Pittsburg,  Pennsylvania.  And  here  1  trust 
that  I  may  be  indulged  in  stating  that  1  was  one  of  his  constituents  i\t  that  porind, 
5.nd  as  he  well  recollects,  one  of  the  most  ardent  and  active  of  the  supporters  of  his 
course  on  this  great  question.  At  first,  public  sentiment  seemed  to  be  almost 
,'■  rwhelmingly  against  him  in  his  district;  the  Legislature  of  Pennsylvania  had 
passed  unanimous  resolutions  against  the  admission  of  Missouri  as  a  slave-holding 
state,  and  but  one  member  of  congress  from  the  state,  had  t'.en  dared  to  follow  his 
Hold  and  darinff  lead  upon  tiiis  subject,  and  that  member  was  driven  for  a  long  time 
most  iinjustly  into  disgrace  among  his  constituents.  He  was  burnt  in  etTitry,  and 
it  is  said,  barely  escaped  from  violence  .-'  Well  do  1  recollect  that  momentous  crisis, 
and  the  obloquy  to  which  Mr.  Baldwin  was  doomed  for  a  time  at  that  period.  But 
he  r^tood  on  the  rock  of  the  constitution  ;  he  stood  unmoved  by  the  surges  of  popu- 
lar commotion  ;  he  was  a  leader  who  fought  in  the  advanced  guard  of  that  great 
conflict,  and  although  for  a  time  he  seemed  like  Curlius  taking  the  fatal  leap  for 
the  salvation  of  his  country,  he  was  saved  by  the  returning  justice  and  intelligence 
of  a  rnagnanim  us  people,  triumphantly  re-elected  to  congress,  and  elevated  to 
higher  and  higher  honours.  The  constitution  of  the  state  of  Missouri,  which  by 
his  vote  he  thus  declared  not  to  be  repugnant  to  the  constitution  of  the  F  liied 
States,  contained  this  very  clause  for  the  prohibition  of  the  introduction  of  ives 
as  merchandise,  and  I  claim  the  full  influence  of  his  vote  under  these  iniposing 
circumstances. 

On  the  30th  January,  18.3G,  the  people  of  the  territory  of  Arkansas  formed  a 
constitution  which  contained  the  following  clause  :  "  They  (the  legislature)  shall 
have  power  to  prevent  slaves  from  being  brought  to  this  state  as  mer>?lian(iise." 
On  the  10th  March,  1836,  this  constitution  was  "  submitted  to  the  considt'ration  of 
congress,"  in  a  special  message  by  the  President.  Senate  Journal,  210.  On  motion 
of  Mr.  Buchanan,  of  Pennsylvania,  in  the  senate,  on  the  same  day,  it  w:is  referred 
to  a  select  committee.  On  the  22(1  March,  1836,  Mr,  ]{uchanan,  as  chairman  from 
the  select  committee,  reported  a  bill  fr)r  the  admission  of  Arkansas  as  a  slate,  under 
the  constitution  submitted  by  the  President,  and  after  considerable  debate,  the  bill 
passed  the  senate  by  a  vote  of  31  to  (i,  fifteen  of  the  ayes  being  from  non-slave- 
iiolding  states  and  from  both  political  p.irti^'s.  and  four  of  the  noes  being  from  non- 
slave-holding  states;  namely,  Messrs.  Knight,  Prentiss,  Robbius,  Swift,  and  two 
from  slave-holding  states,  namely,  Messrs.  Clay  and  Porter,  both  of  whom  placed 
•iue'iT  negai've  on  this  ground  alone,  that  Arkansas  had  formed  her  constitution 
without  asking,  as  was  usual,  the  previous  assent  of  congress.  Having  participated 
in  that  debate,  and  taken  a  deep  interest  as  a  senator  from  Mississippi,  in  the  .id- 
mission  of  Arkansas,  and  successfully  opposed  an  adjournment  till  the  bill  was  en- 
grossed, I  recollect  well  all  the  proceedings,  and  that  but  a  single  senator  based 
his  objection  on  the  ground  of  the  particular  clause  in  qcfstion,  as  to  slaves.    Sucti, 


R,J 


Graves  et  al.  v.  Slavghter. 


Lxxix 


the 
ited 

1868 

till 
ion 
in 
tea, 
d  it 
mly 
:ard 
the 
lea- 
in 
of 
lion 
nsi- 
es8. 


then,  was  the  view  of  the  senate  as  to  the  constitution  of  Arkansas;  and  that  ihey 
felt  constrained  to  oppose  any  clause  in  llio  constitution  of  a  state,  which  they 
deemed  repugnant  to  the  constitution  of  the  Union,  is  cltiirly  proved  by  a  reference 
to  the  proceedings  and  debates  on  the  confirmation  by  the  senate,  at  the  same  time) 
of  the  constitution  of  Michigan.  On  the  Iwt  April,  IS'.id,  when  tiie  adoption  of  the 
constitution  of  Michigan,  and  the  bill  for  the  admission  of  that  state  (as  well  as  of 
Arkansas,)  was  pending  before  the  senate,  the  following  proceedings  will  be  found 
at  page  259.  "  The  motion  by  Mr.  Clay,  to  amend  the  bill,  by  inserting  2  line  4 
after  "confirmed,"  e.\cept  that  provision  of  the  said  constitution,  by  which  aliens 
are  admitted  to  the  right  of  sullVage,"  yeas  14,  nnys  22;  a  reference  to  these  pro- 
ceedings and  debates  will  show  tliat  the  senate  considered  it  its  duty  not  to  con- 
firm any  clause  of  the  constitution  of  a  state,  repugnant  to  the  constitution  of  the 
United  States,  but  to  strike  out  such  clause  before  the  admission  of  the  state ;  and 
the  clause  in  question  as  I  well  recollect,  and  as  the  printed  debates  will  show, 
was  not  stricken  out,  because,  after  a  very  prolonged  argument,  it  was  not  consi- 
dered repugnant  to  the  constitution  of  the  United  States,  the  question  as  to  the 
qualification  of  voters  in  a  state  being  decided  to  be  a  matter  exclusively  belonging 
to  the  slates.  Arkansas  was  admitted  at  the  same  time  witli  Michigan,  and  under 
this  view  of  the  subject,  why  was  not  the  clause  in  question  as  to  slaves  stricken 
out?  For  the  most  obvious  of  all  reasons,  because  but  a  single  senator  considered 
it  repu'jnant  to  the  constitution  of  the  United  Stales.  Such  were  the  proceedings  in 
the  senate  ;  and  in  the  iiouse,  the  constitution  of  Arkansas  was  submitted,  and  she 
was  admitted  as  a  state,  on  the  13lh  June,  18;{l),  by  a  vote  of  143  to  50,  (House 
Journal,  10().'5,)  several  of  the  members  from  the  slave-holding  stales  voting  in  the 
negative,  on  the  same  ground  as  tliat  assumed  in  the  senate.  Nor  was  the  matter 
pissed  by  in  silence,  for  whilst  this  bill  was  pending,  Mr.  Adams  moved  to  strike 
out  from  the  bill,  that  portion  of  it  in  regard  to  slaves  and  slavery,  (page  997.)  but 
it  was  not  seconded ;  and  the  constitution  of  Arkansas  was  confirmed  and  accepted 
with  this  chiuse  included. 

Here,  then,  in  1792,  1817,  1S18,  1819, 1821,  and  1836,  are  si.t  states  whoso  con- 
stitutions were  expressly  regarded  by  ccjngress,  to  be  conformable  to  the  constitu- 
tion of  the  United  Slates,  admitted  at  all  tliese  |)erinds  with  clauses  in  all  of  them, 
as  to  the  e.vclusion  of  slaves  as  mercluindise,  precisely  similar  to  that  now  under 
consideration.  One  of  these  was  the  stale  of  Mississippi,  whose  right  thus  to  pro- 
hibit the  introduction  of  slaves  as  merchandise,  was  in  the  act  of  admission  and 
confirmatiim  of  her  constitution,  expressly  conceded  by  congress. 

Such  lias  been  the  uninlerrupled,  iiositive,  as  well  as  negative  action  of  con- 
gress on  this  subject  for  half  a  century,  fiom  the  organization  of  the  government 
to  llio  present  period,  repudiating  their  own  power,  and  admitting  again  and  again 
the  ])nssession  of  this  power  by  the  states,  and  by  the  slave-holding  states  projier, 
as  well  as  in  the  case  oflllinois,  where  slavery  exsted  when  il  became  a  state,  and 
still  exists,  but  is  disajjpearing  on  the  death  of  the  slaves  now  living.  Now,  let  it 
never  lie  forgotten,  that  the  case  upon  which  our  opponents  rely,  establishes  the 
doctrine,  that  this  power  to  regulate  comiiierce,  is  not  a  concurrent  jiower,  but  one 
vested  exclusively  in  congress;  and  therefore,  to  show  that  the  clause  in  question 
embraces  an  authority  that  can  constitutionally  be  exercised  by  a  state,  demon- 
Btrates  that  congress  has  no  power  over  the  subject. 

Having  examined  the  action  of  congress  on  this  ([uestion,  let  us  now  investigate 
that  of  the  states.  We  have  before  referred  to  the  clause  in  the  original  constitu- 
tion of  the  state  of  Kentucky,  authorizing  the  legislature  to  prohibit  the  introduc- 
tion of  slaves  as  niercliandise.  \l  the  November  sessiim,  1791,  the  legislature  of 
Kentucky  jiassed  a  law,  declaring,  "  That  no  slave  or  slaves  shall  be  imported  into 
this  slate  as  merchandise."  'J'liis  act  intlicled  a  penally  of  $(300  for  each  slave  so 
illegally  imported,  but  did  not  niiiincipntc  tlic  .ilnvr ;  and  it  permitted  emigrants  and 
citizens  to  bring  in  slaves  for  their  own  use.  The  act  then  was  almost  precisely 
eimilar  to  the  provisions  in  Misjiijsippi.  1  Lit.  Laws  Kentucky,  246.  Uy  the 
amended  constitution  of  the  slate  of  Kentucky,  adopted  August  17th.  1799,  the 
clause  uulliorizing  the  legislature  to  prohibit  the  introduction  of  slaves  a:;  mer- 
chandise, is  retained  and  adopted.    Con.  237     By  the  act  of  Feb.  8th,  1815,  5  Lit. 


Ixxx 


Groves  et  al.  v.  Slaughter. 


\m' 


Laws  Ky.  293,  a  penalty  is  inflicted  on  the  importation  of  slaves  as  merchandise, 
but  the  slave  is  not  emancipated.  The  act  of  12th  Feb.  1833,  2d  vol.  Stat,  of  Ky. 
1482,  continues  the  restriction  as  to  importation  for  sale,  and  introduces  further 
restrictions  with  special  exceptions  as  to  emigrants,  but  the  slave  is  not  eman- 
cipated. During  this  very  session  of  ^he  legislature  of  Kentucky,  in  1840  and 
1841,  an  attempt  was  made  to  repeal  this  act  and  failed.  These  laws  have  been 
invariably  enforced  by  all  tht^  judicial  tribunals  in  Kentucky.  I  will  refer  only  to 
a  few  decisions.  Commonwealth  v.  Griffin,  Oct.  7,  1832,  7  J.  J.  Marshall's  Rep. 
588  ;  Lane  v.  Greathouse,  lb.  590.  It  was  decided  in  these  cases  that  either  the 
importation  or  sale  of  slaves  introduced  for  sale,  was  an  indictable  offence.  See 
further,  5  Marsh.  481;  1  Bibb,  «15;  Barrington  v.  Logan,  Fall  Term,  1834;  2 
Dana,  432. 

Li  Virginia  there  are  numerous  laws  before  and  since  the  adoption  of  the  con- 
stitution, prohibiting  the  introduction  of  slaves  from  other  states,  except  under 
special  exception,  one  of  which  was  an  oath  that  the  owner  did  not  introduce  them 
for  sale.  Act  of  1778,  preventing  further  importation  of  slaves,  chap.  1,  Cha. 
Rev.  p.  80;  act  of  1785,  chap.  77,  p.  60;  act  of  1788,  chap.  53,  p.  24  ;  act  of 
1789,  chap.  45,  p.  26  ;  act  of  1790,  p.  7,  chap.  11  ;  act  17th  Dec.  1792  ;  Pleas.  & 
Pace,  1  Rev.  Code,  186,  sec.  13,  1794,  1800,  1803,  1814,  1805,  1810,  1812, 
1816,  1819  ;  see  1  vol.  Rev.  Code  Va.  421,  and  notes.  Generally,  by  these  laws, 
the  slaves  introduced  against  their  provisions  were  declared  free,  and  these  laws 
have  been  uniformly  enforced  by  all  the  courts  of  Virj^inia,  by  the  highly  respect- 
able court  for  the  District  of  Columbia,  and  by  the  Supreme  Court  of  the  United 
States.  1  Leigh.  172  ;  Gil.  143  ;  2  Munf  393  ;  2  Marsh.  467  ;  Law  of  Slavery, 
329  ;  5  Call,  425  ;  6  Randolph,  612  ;  3  Crunch,  324,  and  note,  326  ;  8  Peters,  44. 
The  acts  of  Virginia  of  1788,  1789,  1790,  and  1792,  cotemporaneous  with  and 
shortly  aller  the  adoption  of  the  constitution,  and  passed  by  some  of  the  very  men 
who  had  either  boen  in  the  convention  which  formed  the  constitution  of  the 
United  States,  or  in  that  of  Virginia,  which  ratified  it,  are  entitled  to  high 
respect. 

Tennessee,  it  is  understood,  took  with  her,  on  the  separation  from  North  Caro- 
lina, laws  of  thiit  state,  restrictin^r  the  introduction  of  slaves  for  sale,  and  on  the 
21st  October,  1812,  that  state  passed  a  law  prohibiting  the  introduction  of  slaves  as 
merchi>ndise  ;  but  permitting  emigrants  or  citizens  to  bring  in  their  own  slaves  for 
their  own  use.  The  penalty  for  the  violation  of  the  law  was  the  seizure  for  the 
state  of  the  slaves  illegally  introduced,  and  sale  to  the  highest  bidder.  2  Scott's 
Laws  of  Tennessee,  101. 

In  1798,  the  legislature  of  Georgia  passed  a  law,  forbidding  the  importation  of 
slaves  from  any  other  state  into  Georgia,  except  by  persons  removing  into  the 
state,  or  citizens  who  became  owners  of  slaves  in  other  states  by  last  will  or  other- 
wise. Marbury  &  Crawford's  Digest  of  Laws  of  Georgia,  page  440  ;  and  see 
also,  act  to  same  eff'ect,  Dec.  1793,  cited  Prince's  Digest  Laws  of  Georgia,  page 
455.  By  act  of  1817.  Prince's  Digest,  373,  the  importation  of  slaves  from  any 
state  for  sale  in  Georgia  was  made  a  high  misdemeanor,  and  punished  with  im- 
prisonment for  tliree  years  in  the  penitentiary. 

By  act  3d  February,  1789,  S.  &.  J.  Adams'  Laws  of  Del.  p.  942,  not  only  the 
importation  of  slaves  into  that  state,  but  their  exportation  from  Delaware  to  other 
BtateB  without  license  from  live  justices,  was  ])rohibited  under  a  severe  penalty. 
This  act  is  referred  to  and  confirmed  by  act  June  24tli,  1793,  c.  22,  p.  10,  94  ; 
June  14th,  1793,  c.  20,  and  by  act  January  ISth,  1797,  L.  Del.  13,  21.  To  forbid 
by  a  state  law  the  exportation  of  slaves,  if  they  be  articles  of  uitMciiandise  under 
the  commercial  power,  is  still  more  clearly  to  violate  the  constitution,  than  to  ])ro- 
hibit  their  importation  ;  yet  such  laws  have  been  passed  and  enfoiced  by  Delaware 
nnd  many  other  states. 

By  the  act  of  Pennsylvania,  of  the  29th  March,  1788,  and  t'lo  act  of  1st  March, 
1780,  explained  and  amen<led  by  the  last  net,  all  negroes  born  after  the  passage  of- 
the  act  were  to  be  free  ;  but  the  slaves  then  born  and  living  in  the  state  were  con- 
tinued in  slavery,  and  to  be  registered.     No  slaves  could  be  introduced  for  sale  or 
exported  f«r  sale,  and  all   who  were  brought  in,  except  by  sojourners  for  six 


Groves  el  al.  v.  Slavphter. 


Ixxxi 


Ise, 


months,  and  members  of  congress  for  temporary  residence  during  the  session  of 
congress,  were  declared  free.  Purdoii  s  Dig.  595,  597  ;  1  Dal.  L.  838  ;  1  Smith, 
692  ;  2  Dal.  L.  5S(i  ;  2  Sinitii,  443.  At.  an  early  period  the  question  of  the 
existence  of  slavery  in  Pennsylvania  was  considered,  ind  that  slaves  were  pro- 
perty tiiere,  was  uiiiinimously  pronounced,  after  the  most  elaborate  arguments  by 
tile  iii^riiest  judicial  tribunals  of  tiial  slate.  In  Jaiiiniry,  1795,  a  suit  fur  freedom 
under  tlie  (j|)('ration  of  the  general  provisinns  of  tiie  ■•(institution  of  Pennsylvania, 
was  iiu-<litiitfd,  in  tlie  case  of  Negr<i  Flora  v.  Cirt-eiisiierry.  On  the  15th  December, 
1797,  a  .special  verdict  was  found,  and  at  the  March  term,  1798,  the  case  was  sent 
to  tile  supreme  court,  and  by  them  decided,  that  wiaves  were  property  in  Pennsyl- 
vania. It  was  then  taken  to  the  liioh  court  of  errors  and  appeals  of  that  stale,  and 
after  four  days  argument,  it  was  aiinouneed  liy  thf  court  •'  tiiat  it  was  their 
nnaiiimoiis  opinion,  slavery  was  luit  inconsistent  willi  any  clause  in  the  constitu- 
tion of  Penn.sylvania,"  and  conformably  to  this  opinion  the  entry  of  record  is, 
"  the  court  is  nmniimou.vhj  of  opinion,  that  Negro  Flora  is  a  sliive,  and  that  she 
is  tile  projirrlij  of  defendant  in  error,  and  the  jiMiuiiient  of  the  supreme  court 
is  alVmned." 

PiMinsylvaiiia.  we  have  seen,  had  slaves  in  1780,  and  in  1788,  and  in  1790,  when 
the  hiws  of  1780  and  1788,  were  continued  in  force  by  her  constitution,  and  siie 
still  has  slaves,  recognised  as  such  in  tiie  stale,  and  returned  iindi-r  liie  present 
and  every  preceding  census,  and  as  to  these  slaves,  they  are  as  much  the  property 
of  tlicir  owiuTH,  and  the  subject  of  sale  williin  tlie  i^lale,  as  tlie  slaves  rif  Missis- 
sippi. On  lliis  suiijcct,  \\f  have  not  only  the  decision  of  their  highest  Iribiiiial  be- 
fore quoted,  but  an  uninterrupted  series  of  decir^ions  to  the  same  ellVcl  from  the 
earliest  date  down  to  the  present  jieriod.  I  will  bow  cite  a  decision  of  the  circuit 
court  jf  the  United  States  Ibr  the  Ea.stern  District  of  Pennsylvania,  at  Ai)ril  term, 
183.".  Judges  Ilojikiiison  (and  Italdwin  of  tiie  supreme  ('.(uirt  of  the  United 
Slr.tes)  iiresidinir.  Tile  case  is  reported  in  It  jj.ilil.  liep.  |).  ."71.  At  pa:;e  389, 
Judire  Haldwin,  in  delivering  the  opinion  of  tlie  court,  says  '•  While  the  abolition 
act  jiut  free  blacks  on  the  footing  of  free  wliile  men,  and  alndished  slavery  for  life, 
as  to  tiioso  thcrcaflcr  born,  it  did  not  othervi'ise  interfere  with  those  born  before,  or 
slaves  e.veepted  from  the  operation  of  the  law  ;  tiiey  were  tlini.  and  yd  tirr,  con- 
sidered as  property;  slavery  yet  e.\ists  in  Pennsylvania,  and  the  rights  of  the 
owners  are  now  the  same  as  before  the  abolition  act  ;  though  their  nuiubcr  is  sviuH, 
their  coiulituni  is  iinrhuused."  JN'ow,  we  have  seen  that  Pennsylvania  prohibited 
both  the  importation  and  exportation  of  slaves  for  sale;  and  iatr  supreme  tribunals, 
as  well  ns  the  circuit  court  of  the  United  States,  have  uniformly  maintained  and 
enforced  iliese  laws,  yet  upon  the  position  assumed  by  our  opponents,  they  are  null 
and  void,  and  slaves  can  be  both  exported  from  Pennsylvania  for  sale  into  other 
states,  and  introduced  from  other  states  into  Pennsylvania  for  sale,  and  the  sale  i- 
valid  ;  and  the  purchasers  may  hold  property  in  any  number  of  slaves  thus  in- 
troduced and  sold. 

See  the  following  decisions  of  tlie  highest  judicial  tribunals  of  Pennsylvania, 
affiriiiing  the  existence  of  slavery  there,  ami  the  validity  of  the  laws  forbidding  the 
exportation  of  slaves  for  sale  in  Pennsylvania,  and  their  importation  li-  ■  uther 
states  into  Pennsylvania  for  sale.  4  S.  &  R.  218,  425  :  4  Yates.  115,  109,  240  ;  1 
Dal.  1(J7.  175,  4(i9  ;  2  Yates,  234,  4  19  ;  Addison,  284  ;  7  S.  ifc  R.  28(),  378;  3  S. 
&  R.  4,  5,  {>,  396  ;  6  Bin.  213,  204,  '>97  ;  1  Wash.  C.  C.  R.  499  ;  1  Bro.  113  ;  5 
S.  &  R.  ()2,  333  ,  2  S.  &  11.  305  ;  1  Yate3,  3i)5,  3i)8,  233,  220,  480  ;  4  Bin.  186  ; 
1  S.  &  R.  23  ;  3  Bin.  30i  ,  2  Dal.  224,  227  ;  4  Dal.  258,  260  ;  4  Wash.  'J.  C.  R. 
396  ;   1  Watts,  155. 

I  will  cull  attention  but  to  one  o(  these  cases  decided  in  1806,  by  the  circuit 
court  of  the  United  States  for  the  Pennsylvania  district,  by  .Judge  Peters,  of  the 
district  court,  and  Jadge  Washington,  one  of  the  .Judges  of  the  supreme  court 
of  the  United  States,  botli  experienced  and  eminent  jurists,  and  both  familiar  with 
the  proceedings  of  the  convention  which  formed  tlie  constitution  of  the  United 
States,  and  both  distinguished  cotemporaries  with,  and  associates  of  its  framers. 
This  was  the  case  of  a  suit  for  fretdom  by  a  slave  imported  from  South  Carolina 
into  Pennsylvania  in   1794,  contrary  to  the  prohibitory  act  of  that  state,     The 


Ixxxii 


Groves  et  al.  v.  Slaughter. 


facts  were  embraced  in  a  sp^icial  verdict,  and  time  taken  for  the  court  to  deliberate, 
when  the  decision  was  pronounced  by  Judge  Washington,  as  follows  :  "  To  dispose 
at  once  of  an  objection  to  the  validity  of  this  laW;  which  was  slightly  glanced  at,  I 
observe,  that  the  9th  section  of  the  1st  article  of  the  constitution  of  the  United 
States,  which  restrains  congress  from  prohibiting  the  importation  of  slaves  prior  to 
the  year  1808,  does  not,  in  its  words  or  meaning,  apply  to  the  state  governments. 
Neither  does  the  2d  section  of  the  4th  article  ;  which  declares,  that '  no  person, 
held  to  labour  or  service  in  one  state  under  the  laws  thereof,  escaping  into  another, 
shall,  in  consequence  of  any  law  therein,  be  dischartred  from  such  service  ;'  extend 
to  the  case  af  a  slave  voluntariltj  curried  by  his  master  into  another  state,  and  there 
leaving  him  under  the  protection  of  some  law  declaring  him  free.  The  exercise  of 
this  riglit,  ni  restraining  tlie  imporlat>"n  of  slaves  from  the  other  states,  under  differ- 
ent limitations,  is  not  peculiar  to  Pennsylvania.  Laws  of  thio  nature,  but  less 
rigid,  exist  in  most  of  the  states  where  slavery  is  tolerated."  1  Wash.  C.  C.  R. 
560,  501.  Althougii  the  coistitutional  objection  to  the  prohibitory  law  of  Penn- 
sylvania was  but  slightly  glanced  at  in  the  argument,  it  seems  to  have  been 
maturely  considered  by  the  court  and  the  very  question  decided,  that  the  law  was 
constitutional,  and  tliat  the  clai;,-k>  ip  tlie  constitution  of  the  United  States,  restrain- 
ing congress  until  180S  from  prohibiting  the  introduction  of  slaves,  "  does  not  in 
its  words  or  meaning  o/i/>lij  to  t'c  'ate  goccrnmcnts  ;"  when  we  recollect  that  this 
was  the  case  of  a  slave  imported  fr'im  (iie  state  into  another,  the  importance  of  the 
above  decision  becomes  ohvious.  and  especially  as  the  court  recognises  in  the  same 
decision  the  constitutionality  fil'  'he  laws  of  other  stales,  and  of  the  states  where, 
slavcnj  is  tolerated,  restraining  llie  impoitation  of  slaves  t'rom  other  slates;  and  this 
very  cii.se.  and  tlie  doctrine  contained  in  it,  were  solemnly  reaffirmed  by  the  same 
court,  in  the  case  ex  |)arte  Simmons,  4  Wash.  C.  C.  11.  39(),  and  applied  to  the 
case  of  a  slave  introduced  from  South  Carolina  into  Pennsylvania  in  the  year 
1822, 

In  Maryland,  by  acts  of  1796,  variously  modified  in  1797,  1798,  1802,  1804. 
180.),  1806,  1807,  1809,  1812,  1819,  1S20,  1821,  1822,  1823,  1824,  1828,  183l', 
1832,  !8o3,  1834,  1836,  1837,  (see  1  Dorsey's  Laws  of  Maryland,  page  334,  «fcc.) 
the  importation  of  slaves  for  sale  into  Maryland  was  prohibited;  and  in  most  of 
the  laws,  the  slaves  so  imported  weio  declared  free,  and  importation,  except  by 
emigrants,  though  not  for  sale,  was  generally  prohibited.  These  laws  have  been 
invariably  enl'orced  by  repeated  decisions  of  the  judicial  tribunals  of  that  stale,  as 
well  as  of  the  adjacent  states,  and  by  the  Supreme  Court  of  the  United  States.  5 
Har.  &  John.  86,  99,  107,  and  note;  Law  of  Slavery,  381,  382,  388,  389;  5 
Rand.  126  ;  4  Har.  &  M'Hen.  418  ;  4  Har.  &  John.  282;  3  Har.  &  John.  564; 
6  Cranch,  1  ;   1  Wheaton,  1  ;  8  Peters,  44. 

In  New  York,  slavery  existed  to  the  same  extent,  as  regards  the  rights  of  the 
master,  as  in  most  of  the  slave-holding  stales  proper,  until  very  recently.  By  the 
colony  laws  of  New  York,  prior  to  the  revolution,  slavery  was  as  firmly  established 
ill  that  state  as  in  any  of  the  Southern  states,  and  the  importaticn  of  slaves  into 
New  York  encouraged  hij  luic.  See  acts  of  1730  and  1740,  et  al.;  1  Colony  Laws, 
72,  193,  199,  283,  284. 

The  act  of  ?'  th  March,  1781,  c.  32,  56,  recognised  slavery  as  in  full  force  in 
New  York,  as  ■■  w  did  the  act  of  1st  May,  1786,  c.  58,  sec.  29,  30.  The  act  of 
the  22d  of  Fi  ary,  1788,  c.  40,  enacted  cotemporaneously  with  the  adoption  of 
the  constitu'  of  the  United  States,  recognised  and  continued  the  existence  of 
slavery  in  New  York,  but  prohibited  the  importation  of  slaves/or  sale,  and  the  act 
was  continued  by  subsequent  laws.  1  Revised  Slats.  656  ;  K.  &  R.  1  ;  R.  L.  614, 
cited  14  John.  269. 

By  the  act  of  4th  July,  1799,  c.  62,  slaves  born  in  the  state  after  that  date  were 
declared  free  at  28  years  of  age,  but  all  others  were  continued  as  slaves.  By  act 
30th  March,  J  810,  the  importation  of  slaves,  except  by  the  owner  for  nine  months, 
residence,  was  prohibited  ;  and  most  of  the  former  laws  were  incorporated  into  the 
act  of  9th  April,  1813  ;  and  finally,  on  the  4th  of  July,  1827,  slavery  was  in  fact 
abolished  ;  except,  perhaps,  as  to  the  very  fev  slaves  born  before  4th  July,  1799, 
and  subsequently  lawfully  introduced  as  slaves. 


Groves  et  al.  v.  Slaughter. 


Ixxxiii 


te, 
use 
I 
ted 

to 
ts. 
on, 


By  the  official 


by  the  United  States,  of  the 


jlation  of  New  York,  the 


census 

following  slaves  were  returned  from  that  state.  In  1790,  21,324  slaves  ;  in  1800, 
20,613  slaves  ;  in  1810,  15,017  slaves  ;  in  1820,  10,088  slaves;  in  1830,  76  slaves; 
in  1840,  3  slaves.  Let  it  be  remembered  also,  that,  by  the  constitution  of  New 
York,  tile  statutes  of  that  state,  enacted  by  the  legislature,  received  tlie  sanction  of 
a  council  of  revision  before  they  became  laws,  which  council  consisted  of  the 
governor,  the  chancellor,  and  JihIji.'h  of  the  supreme  court.  Con.  181.  These 
laws,  forbidding  the  importation  of  slaves  for  sale,  received  a  judicial  sanction  be- 
fore their  enactment ;  and  let  it  be  remembered,  that  many  of  them  passed  with 
the  sanction  of  many  of  the  dlstinjrnished  statesmen  of  New  York,  who  had  par- 
ticipated either  in  the  convention  wiiicii  formed,  or  wliich  ratified  the  coti.stitution 
of  the  United  States.  Wlii'st,  by  tlie  act  of  1788,  and  other  laws  of  a  subsequent 
date,  slaves  subsequently  imported  into  the  state  could  not  be  sold  by  tlie  master 
or  owner  ;  yet,  even  these  slaves  were  property  in  all  other  respects;  tliey  were 
assets  for  the  payment  of  debts  ;  they  could  be  sold  by  a  trustee  or  assignee  of  an 
insolvent ;  by  an  administrator  or  executor,  or  by  a  slieriff  under  an  execution  ; 
and  all  other  slaves  were  subject  tosale  by  their  owners  as  all  other  property.  2 
John.  Cases,  79,  488,  8!) ;  11  John.  68,  415;  17  John.  296;  3  Caines,  325;  8 
John.  41;  14  John.  263,324;  9  John.  67;  15  John.  283;  19  John.  53.  The 
first  case,  in  which  the  law  was  settled  under  these  statutes  in  New  York,  was 
decided  in  1800,  and  will  be  found  reported  in  2  John.  Cases,  79,  488. 

In  1794,  A.  the  owner  of  a  slave  in  New  Jersey,  removed  to  New  York  with 
the  slave,  and  put  the  slave  to  service  witli  B.  until  they  or  their  executors  siiould 
annul  their  agreement.  Held,  liir.t  a  sale  of  the  slave  was  prohibited  by  act  of 
February,  1788  ;  but  that  a  sale  of  the  slave  by  executors,  trustees,  assignees,  &c. 
would  be  valid.  Chancellor  Kent  declared,  "  The  act  (of  1788)  was  iiostile  to  the 
inqiortation  and  to  the  exportation  of  slaves,  as  an  article  of  trade,  not  to  the  exist- 
ence of  slavery  itself;  for  it  takes  care  to  re-enact  and  establish  the  maxim  of  the 
civil  law,  that  the  children  of  every  female  slave  sliall  follow  the  state  and  condi- 
tion of  their  mother."  And  he  adds,  tliat  "sales  made  in  the  ordinary  course  of 
the  law,  and  wiiich  are  free  from  any  kind  of  collusion,  are  not  within  the  provi- 
sions of  the  act."  "  By  considering  the  sale  mentioned  in  the  act,  as  confined  to 
a  voluntary  disposition  of  the  slave  for  a  valuable  consideration,  by  the  owner  him- 
self, we  are  enabled  effectually  to  reach  the  mischief  in  view,  the  importation  of 
slaves  for  gain,  and  we  take  away  every  such  motive  to  import  them." 

In  tlie  same  case,  Beeson,  Justice,  says:  "By  the  law  of  tliis  state  slavery  may 
exist  within  it.  One  person  can  hare  propertij  in  another,  and  the  slave  is  part  of 
the  iroods  of  the  master,  and  may  be  sold,  or  otherwise  aliened  by  him  ;  or  remain- 
ing unaliened,  is  on  his  death  transmissuhle  to  his  executors ;  but,  by  tlie  act  under 
consideration,  a  slave  imported,  or  brought  in,  is  not  to  be  sold,"  &c. — as  to  all 
other  slaves  in  New  York,  the  court  decide  : 

1st.  That  they  may  be  sold  by  the  owner  as  other  property,  but  as  to  imported 
slaves,  that  they  cannot  be  sold  hy  tiie  owner  ;  but  1st,  that  he  may  give  them 
away,  and  the  title  of  the  donor  be  valid. 

2d.  That  their  issue  may  be  sold  even  by  the  owner  who  imported  their 
mother. 

3d.  That  the  imported  slaves  are  liable  to  sale  by  sheriffs,  assignees,  trustees, 
executors  or  administrators,  as  all  other  property. 

In  these  opinions  the  court  was  unanimous,  and  the  case  is  in  point  in  every 
particular,  and  was  subsequently  recop"iised  in  all  succeeding  cases. 

The  same  court,  in  2  John.  Cases,  89,  held,  tliat  as  to  a  slave  imported  in  1795, 
from  New  Jersey  to  New  York,  the  sale  was  void,  under  the  act  of  1788;  and  this 
case  also  was  affirmed  in  1802,  and  the  principle  of  the  two  cases,  and  especially 
of  the  former,  was  expressly  recognised  by  the  supreme  court  of  New  York  in 
1S20  ;  and  that  a  note  given  for  the  purchase  of  a  slave  so  imported  and  sold,  was 
void       17  John.  295. 

In  1803  the  supreme  court  of  New  York  enforced  the  act  of  1788  as  well  as  of 
1801,  rendering  void  the  sale  of  imported  slaves.  8  Caine's  Rep.  325.  Now, 
slaves  already  in  the  state  of  New  York,  stood  on  the  same  footing  as  slaves  in 


Ixxxiv 


Groves  ct  al.  v.  Slaughter, 


Mississippi,  and  it  was  only  as  to  slaves  imported  into  either  state,  after  a  certain 
dute,tliat  tlie  sale  is  sought  to  i)e  invalidated  ;  and  if  the  law  is  void  in  Mississippi, 
under  the  argument  of  our  ()pi)nnent3,  it  must  have  been  equally  void  in  New  York, 
during  all  this  ])eriod,  notwilhstandiiig  these  re|)eatfd  decisions  to  the  contriiry  of 
the  courts  of  that  state,  upholding  the  rights  of  property  and  of  sale  of  all  the 
slaves  in  New  York,  npholdinir  xlw  right  ol'  property  and  the  sale  for  (lei)ts,  or  in 
course  of  distribution  even  of  these  imported  slaves,  but  rendering  void  the  mile  hij 
the  im/iortcr. 

Uy  iho  law  of  North  Carolina,  of  1794,  Haywood's  Man.  533,  4,  c.  2,  the  in- 
troduction of  slaves  after  the  \st  tif  .Maij  next,  for  sale  or  hire,  was  prohibited,  and 
an  oatli  was  retpiired  that  the  slaves  were  not  introduced  for  trallic,  with  an  ex- 
ception in  faviiur  of  emigrants  bringing  in  their  own  slaves  for  their  own  use,  and 
an  exception  in  favour  of  travellers.  The  penalty  was  one  hundred  pounds  for 
each  slave  so  illegally  introduced.  Upon  the  general  revisal  of  the  laws  of  this 
state,  at  the  September  session,  1836-7,  the  im()ortation  of  slaves  from  certain 
states  was  altogether  interdicted.  1  Turner  iSc  Hughes'  Dig.  571  to  574. 

The  acts  of  South  Carolina,  of  1800  and  of  1801,  prohibited  the  importation  into 
that  state  of  slaves  from  any  jdac-'  "  witiiout  the  limits  of  this  stale,"  under  penal- 
ty of  !^100  for  each  slave  so  il'  •:  .My  imported,  and  forfeiture  of  the  negro  to  be 
sold  by  the  slate.  The  act  of  1802,  e.xcepls  from  former  act,  persons  bringing  into 
or  through  the  stale  any  slav.:.-;,  on  taking  oath  that  they  were  not  intended  for 
sale;  and  if  imported  cortrarv  to  tlie  law,  tliey  were  declared  free. 

By  the  act  of  Missouri,  of  latli  ^larch,  18:55,  digesting  former  laws,  various  re- 
strictions were  imposed  i:  .  iiiiroduction  of  .'slaves,  and  nearly  similar  provisions 
were  adopted  by  Arkan;  a  the  24th  of  February,  1838.  llev.  Stat.  Missouri, 

581,  lb.  Arkansas,  730,  tti  Missouri,  the  validity  of  laws  re.-iUicling  or  totally 
prohibiting  the  importation  of  flai  ■  has  been  repeatedly  allirmed  by  the  supreme 
court  of  that  state,  1  Missouri  nep.  -l72,  2  lb  214,  3  lb.  270;  and  several  of  tliese 
decisions  recognise  and  enibrce  tiie  provision,  before  quoted,  of  the  constitution  of 
Illinois,  prohibiting  the  introduction  of  slave.-i  into  that  state. 

By  territorial  laws,  before  referred  to,  adoj)ted  iv.  1808,  restrictions  were  im- 
posed in  the  territory  embracing  the  present  states  of  Mississipji  and  Alabama, 
on  the  introduction  of  slaves  as  merchandise.  Uy  the  constitutions  of  each  of  these 
states,  adopted  in  1817  and  1811),  full  jjower  is  given  to  the  legislatures  to  pruhibit 
this  traffic.  By  the  amended  constitution  of  Missisi-ippi  of  1832,  this  traffic  was 
entirely  prohibited,  and  by  the  act  of  13th  of  May,  1837,  such  importation  for  sale 
into  that  state,  is  declared  a  high  misdemeanor,  punishable  wilii  imprisonment, 
with  a  fine  of  .^500  for  each  slave  so  introduced,  and  the  nullity  of  the  contract 
of  sale,  and  forfeiture  of  tiio  purchase  money. 

In  Louisiana,  by  the  acts  of  1826;  of  the  19lli  of  November,  1831  ;  2d  of  April, 
1832;  before  referred  to,  the  introduction  of  slaves  into  that  slate  for  sale,  was  pro- 
hibited under  severe  penalties,  and  the  slaves  so  illegally  introduced  declared  free. 

By  the  act  of  Rhode  Island,  of  17t)4,  subsequently  continued  and  still  in  iurce, 
80  I'ar  as  shown  by  their  most  recent  digests,  the  importation  ot' slaves  into  the 
state  was  forbidden,  w'ith  the  excepti(ni  of  d<)m('slic  'slaves  of  "citizens  of  other 
states  travellins  through  the  stale  or  coming  to  reside  therein,"  and  the  slaves  il- 
legailv  inpoiled  declared  free.  The  slaves  then  in  the  state,  or  im])orted  under 
the  above  exceptions,  were  cimlinucd  as  slui-fs,  but  their  children  born  after  the 
date  of  the  law  became  free.     Laws  of  Rhode  Island,  page  4il. 

By  the  laws  of  Connecticut,  of  1774  and  of  1784,  since  three  times  re-enacted, 
and  revised  and  continued  in  17!>7  and  1821,  slavery  was  continued  as  to  the 
slaves  already  in  the  state,  but  all  born  after  the  Ist  of  March,  1784,  we'-p  declared 
free.  See  Stat.  428,  440  ;  1  Swif.  Sys.  220  ;  12  Con.  Reps.  45,  59,  60,  64.  Tliese 
laws  declared  "that  no  Indian,  negro,  or  mulatto  slave  shall  at  any  time  hereafter 
be  brought  or  imported  into  this  state,  by  sea  or  land,  irom  any  place  or  places 
whatsoever,  to  be  disposed  of,  left  or  sold  within  the  state." 

In  the  case  of  a  slave  brought  from  Georgia  to  Connecticut,  in  1835,  and  left 
there  for  temporary  purposes,  as  was  contended,  such  slave  was  declared  free,  one 
judge  only  dissenting,  and  he  upon  the  sole  ground  that  the  slave  was  not  left 


Grovea  et  al.  v.  Slaughter. 


Ixxxv 


lin 

[of 
kie 
Jin 

ll»J 

111- 

fid 

Ind 
Ibr 
■lis 
lin 


within  the  meaning  of  the  act  of  1784.  In  this  case,  reported  in  12  Conn.  38  to 
67,  and  decided  in  1837,  it  was  held,  first,  that  slavery  did  exist  in  Connecticut  as 
to  the  slaves  introduced  prior  to  u.  certain  date;  lli.it  these  slaves  "still  continued 
to  be  held  as  /irn/icitij,  subject  to  the  control  ot'tlicir  niustfrs ;  and  that  numbers  of 
them  still  continue  so  to  be  held,  ns  proved  by  the  lust  census  of  the  state."  2d. 
The  doctrine  of  8  Conn.  393,  was  uthriiied,  in  which  it  was  declared  that  a  certain 
negro  in  Connecticut  "  was  the  .ilacf  and  /irrsoiial  propcrtij"  of  his  master  in  Con- 
necticut. 3d.  That  "there  is  nothing  in  the  constitution  of  the  United  States" 
forbidding  any  state  from  pieventing  slaves  being  roluidaiUij  brought  within  their 
limits.  4tli.  That  slavery  is  local,  and  must,  be  gurcnud  enlirilij  by  the  luvvs  of  the 
state  in  which  it  is  attempted  to  be  enforced.  5th.  That  the  law  of  Connecticut, 
and  of  any  other  state  preventing  the  importation  of  slaves  from  any  other  state 
for  sale,  are  valid.  6th.  That  a  state,  retaining  in  servitude  the  slaves  within  its 
limits,  may  legislate  "  to  prevent  the  increase  of  slavery  by  importation."  This 
case  was  very  elaborately  argued,  and  the  opinion  prejiiired  with  great  care  and 
ability;  and  upon  these  points,  evolved  by  me  from  the  decision,  the  court  was 
unanimous.  The  case  is  precisely  in  point  on  the  principles  deciiied;  and  if  slaves 
can  be  imported,  for  sale,  into  Mississippi,  they  can  be  imported,  for  sale,  into  Con- 
necticut; for  the  slaves  already  in  the  hitter  are  just  as  much  "the  property  of 
their  masters"  as  in  the  former.  See  also  siinihir  decisions  in  Connecticut  on  most 
of  these  points.     2  Root.  333,  517  ;  2  Conn.  355  ;  3  Conn.  4«7  ;  8  Conn.  393. 

By  the  act  of  New  Jersey  of  14th  March,  1798,  Elmer's  Digest,  520,  slaves  al- 
ready within  the  state,  it  is  expressly  enacted,  shall  remain  slaves  for  life ;  and 
their  sale  by  their  owners  is  permitted,  except  collusive  sales  of  decrepit  slaves. 
The  importation  of  slaves,  for  sale,  is  prohibited  under  a  pecuniary  penalty,  but 
certain  persons  are  permitted  to  bring  in  certain  slave:?  for  their  own  use.  By  the 
act  of  27th  of  February,  1820,  Elmer,  525,  slaves  born  after  4th  of  July,  1804,  are 
declared  free;  the  males  at  25,  and  the  females  at  21  years  of  age.  The  importa- 
tion of  slaves  into  the  state  for  sale,  or  exportation  for  sale,  is  forbidden,  and  also 
generally,  with  some  exceptions;  and  the  slave  unlawfully  imported  or  exported  is 
declared  free.  The  law  of  New  Jersey,  of  1798,  differs  in  no  respect  from  the 
present  provision  in  Mississippi,  and  these  laws  have  been  universally  recognised 
in  New  Jersey.  See  2  Halsted,  253;  3  Hal.  219,  275;  1  Penning.  10;  4  Hal. 
167;   1  Hal.  374. 

In  Indiana,  no  /lave  can  be  imported  under  their  laws.  1  Blackford's  Indiana 
Reports,  60;  3  American  Jurist,  404.  Nor  in  Ohio,  Maine,  Massachusetts,  New 
Hampshire,  or  Vermont,  under  their  constitutions.  See  Book  of  Cons,  pages  273, 
19,  38,  62,  81.     See  Com.  v.  Aves,  19  Pick.;  4  Mass.  123,  128,  129;  2  Tyler, 

192. 

When  the  constitution  of  the  Union  was  formed,  all  the  states  were  slave-holding 
states,  except  Massachusetts;  and  by  the  doctrine  of  our  opponents,  none  of  them 
but  that  state  could  have  prohibited  the  introduction  of  slaves,  for  sale,  and  yet 
they  all  exercised  the  power.  That  there  may  be  no  mistake  on  the  subject,  I 
refer  the  court  to  Senate  Document,  505,  containing  the  census  of  each  state,  com- 
piled by  the  department  of  state,  under  the  resolution  of  congress  of  February  26th, 
1833  (and  the  supplement  returned  this  year),  showing  the  number  of  slaves  in 
those  states  generally  denominated  free  states. 


1790. 


1800. 


1810. 


1820. 


1830 


1840. 


New  Hampshire, 

158 

8 

Rhode  Island, 

952 

381 

108 

48 

17 

5 

Connecticut, 

2,759 

951 

310 

97 

26 

54 

Vermont, 

17 

New  York, 

21,324 

20,343 

15,017 

10,088 

75 

3 

New  Jersey, 

11,423 

12,422 

10,851 

7,557 

2,254 

658 

Pennsylvania, 

3,737 

1.706 

796 

211 

403 

31 

Delaware, 

8,887 

6,153 

4,177 

4,509 

3,292 

2,613 

Illinois, 

H 

168 

917 

747 

184 

((■ 


Ixxxvi 


Groves  et  al.  v.  Slaughter. 


I      > 


111 


And  yet  all  tlicse  nine  Ntatcs,  now  denoniinated  free  states,  did,  so  far  as  they 
existed  in  1790,  liold  slaves,  and  acknowledge  property  in  slaves,  and  the  sale  of 
slaves  within  their  limits  was  valid;  and  according  to  the  argument  of  our  oppo< 
nents,  all  their  laws,  piohibiting  the  importation  of  slaves  for  sale,  then  were,  and 
still  are,  unconstitutional;  and  slaves  always  could,  and  now  can  be,  lawfully  im- 
ported and  sold,  and  held  as  slaves  there  :  for  the  doctrine  is,  that  so  long  as  a  sin* 
gle  slave  is  held  as  such  in  any  state,  any  number  of  slaves  may  be  imported  into 
and  sold  and  held  as  slaves  within  its  limits,  the  alternative  being  between  total, 
immediate,  and  absolute  emancipation  of  all  slaves  on  the  one  hand,  and  the  per- 
petuity of  the  slave  trade  on  the  other. 

But  the  acts  of  1792,  of  Virginia,  and  of  1796,  as  well  as  previous  laws  of  Mary- 
land, prohibiting  in  eti'ect  the  introduction  of  slaves  from  other  states  for  sale, 
have  been  repeatedly  and  unanimously  recognised  as  valid,  and  enforced  by  the 
supreme  court  of  the  United  States,  and  also  by  the  highly  respectable  court  for 
the  District  of  Columbia. 

By  act  of  congress,  the  laws  in  force  in  Virginia  and  Maryland,  at  the  date  of 
the  cession  by  those  states  of  their  respective  portions  of  the  District  of  Columbia, 
were  continued  in  force  after  the  cession,  meaning  thereby  of  course,  only  such 
laws  of  those  states  as  were  not  repugnant  to  the  constitution  of  the  United  States, 
for  such  laws  only  could  have  been  previously  in  force  in  those  states,  and  such 
laws  only  could  have  been  continued  in  force  in  the  District.  These  laws  then 
under  the  declaratory  act  of  congress,  as  has  been  universally  conceded,  continued 
in  force  by  virtue  of  their  previous  operations  over  those  jjarts  of  the  District  for- 
merly included  in  the  ceding  states,  and  not  by  virtue  of  any  act  of  congress  re- 
enacting  iheir  provisions;  and  here  let  it  be  remarke'',  that  even  as  to  those  laws  of 
any  state  adopted  prior  to  the  constitution  of  the  United  States,  but  which  were 
repugnant  to  powers  granted  exclusively  to  congress  by  that  instrument,  it  is  an 
admitted  principle,  that  all  such  laws  became  null  and  void,  ufler  the  adoption  of 
the  constitution,  and  all  subsequent  decisions  enforcing  any  laws  of  a  state  even 
prior  to  1788,  forbidding  the  introduction  of  slaves  for  sale,  proclaim  the  con- 
sistency of  those  laws  with  the  constitution  of  the  United  States,  as  fully  as  though 
they  had  been  subsequently  enacted. 

In  1802,  a  claimant  of  a  slave,  without  the  consent  of  the  true  owner,  brought 
him  from  Maryland  into  Alexandria,  in  the  District  of  Columbia,  (formerly  Vir- 
ginia,) where  he  remained  more  than  a  year,  and  the  circuit  court  for  the  District 
of  Columbia  decided,  that  being  a  slave  imported  contrary  to  the  law  of  Virginia, 
of  1792,  manumitting  slaves  imported  from  any  other  state,  and  held  twelve 
months  in  that  stale,  unless  upon  oath  made  within  a  certain  time  that  the 
importer  did  not  bring  them  in  "  with  an  intention  of  selling  them" — and  this  oath 
not  having  been  taken  by  the  claimant  who  introduced  the  slave,  he  was  free. 
Scott  V.  Negro  London,  3  Cranch,  326.  The  decision  was  reversed  by  this  court, 
upon  the  ground,  that  although  the  prescribed  oath  was  not  made  in  due  time  by 
the  claimant,  who  introduced  the  slave  as  his,  yet  such  oath  having  been  made 
within  the  proper  time  by  the  otvner,  that  on  that  ground  the  slave  was  not  free  ; 
but  the  validit}'  of  the  Virginia  law  was  fully  recognised.     3  Cranch,  324. 

In  6  Cranch,  1,  this  court  also  admitted  the  validity  of  the  law  of  Maryland, 
of  1783,  prohibiting  the  introduction  of  slaves  into  that  state. 

In  1  Wheaton,  1,  this  court  again  unanimously  admitted  the  validity  of  the 
Maryland  act  of  1796,  before  quoted,  prohibiting  the  importation  of  slaves  for  sale, 
or  also  to  reside,  except  as  to  emigrants.  The  court  expressly  declare  that,  that 
"  act  of  the  state  of  Marylond,"  "  is  in  force  in  the  county  of  Washington  (Dis- 
trict of  Columbia)." 

In  8  Peters,  44,  Lee  v.  Lee,  the  case  is  thus  stated  by  the  reporter,  and  the 
unanimous  decision  of  this  court,  as  pronounced  by  Justice  Thompson,  is  also 
given.  "  The  plaintiffs  in  error  filed  a  petition  for  freedom  in  the  circuit  court  of 
the  United  States  for  the  county  of  Washington,  and  they  proved  that  they  were 
born  in  the  state  of  Virginia,  as  slaves  of  Richard  B.  Lee,  now  deceased,  who 
moved  with  his  family  into  the  county  of  Washington,  in  the  District  of  Columbia, 
about  the  year  1816,  leaving  the  petitioners  residing  in  Virginia  as  his  slaves. 


lU     » 


Groves  et  al.  v.  Slaughter. 


Ixxxvii 


»o« 
nd 
ra- 
in- 
Uo 


of 

lia, 
uch 


until  the  year  1820,  when  the  petitioner  Barbara,  was  removed  to  the  county  of 
Alexandria,  in  the  District  of  Columbia,  where  she  was  hired  to  Mrs.  Muir,  and 
continued  with  her  thus  hired  for  the  period  of  one  year.  That  the  petitioner 
Sam,  was  in  lilie  miinner  removed  to  liie  county  of  Alexandria,  und  was  hired  to 
General  Waiter  JoneH,  for  a  period  of  about  five  or  Bix  months.  That  after  the 
expiration  oi'  the  said  periods  of  hiring,  the  petitioners  wtTo  removed  to  the  said 
county  of  Wasliington,  wliere  they  continued  lo  rewide  as  liie  sluves  of  the  said 
Richard  B.  Lee,  until  his  deatli,  and  since  as  the  slaves  of  his  widow,  the  defend- 
ont."     The  court  said  : 

"  By  the  Maryland  law  of  1796,  it  is  declared,  tliat  it  shall  not  be  lawful  to  im- 
port or  brinjf  into  this  stale  by  land  or  water,  any  negro,  mulatto,  or  other  slave 
for  sale,  or  to  reside  within  tliis  state.  And  any  person  brought  into  this  state  as 
a  slave,  contrary  to  this  act,  if  a  slave  before,  shiili  thereupon  cen.se  to  be  the  pro- 
perty of  the  person  so  importing,  and  shall  be  free." 

"  And  by  the  act  of  congresH  of  the  27th  of  February,  1801,  it  is  provided,  that 
the  laws  of  the  state  of  Maryland,  as  they  then  existed,  should  be,  and  continue  in 
force  in  that  part  of  the  district,. which  was  ceded  by  that  state  to  the  United 
States." 

"  The  Maryland  law  of  1796,  is,  therefore,  in  force  in  the  county  of  Washington, 
and  the  petitioners,  if  brought  directly  from  the  state  of  Virginia  into  the 
county  of  Washington,  would,  under  the  provisions  of  that  law,  be  entitled  to 
their  freedom." 

Here,  the  law  of  Maryland,  of  1796,  prohibiting  the  introduction  of  slaves  from 
other  states  into  that  state,  was  enforced  by  the  unanimous  opinion  of  the  Supreme 
Court  of  the  United  States.  This  is  not  an  extra-judicial  opinion,  but  a  decision 
directly  in  point,  enforcing  a  law  of  Maryland,  which  involved  this  very  question 
now  to  be  decided  by  this  court.  And,  here  let  me  observe,  that  if  it  is  lawful  and 
must  be  permitted  under  the  commercial  power  to  introduce  slaves  from  one  slate 
into  another  for  sale,  it  cannot  be  lawful  in  any  state  to  emancipate  them  as  a  con- 
sequence of  such  introduction,  any  more  than  to  forbid  the  sale.  And  here  let  it 
be  remarked,  that,  our  opponents  concede  that  each  state  may  emancipate  all  the 
slaves  within  their  limits  by  a  state  law,  where  there  is  no  opposing  provision  of 
the  state  constitution,  and  where  there  is,  then  by  an  amendment  of  her  state  con- 
stitution, to  be  adopted  by  the  state.  Each  state  may  dissolve  at  pleasure,  or  esta- 
blish the  relation  of  master  and  slave  within  her  limits,  and  that  congress  can 
neither  dissolve  nor  establish  that  relation  in  a  state.  But  to  add  to  the  number  of 
slaves  in  a  state  against  her  will  by  the  authority  of  congress,  is  so  far  to  establish 
and  extend  the  relation  of  master  and  slave  within  her  limits  by  the  authority  of  con- 
gress. But,  by  the  concession  of  our  opponents,  a  state  may  emancipate  all  the  slaves 
within  her  limits,  by  declaring  them  not  to  be  property  within  her  limits,  and  then 
this  commercial  power  they  say  will  not  extend  to  that  state.  As,  however,  a  state 
cannot  do  this  as  to  goods  and  merchandise,  by  declaring  them  not  to  be  property 
within  her  limits,  so  as  to  exempt  them  when  imported  from  the  operation  of  the 
commercial  power,  this  very  distinction  shows,  that  goods  and  merchandise  are, 
and  slaves  are  not  within  the  operation  of  the  commercial  power.  But  this  ad.Tiis- 
sion  of  our  opponents,  that  a  state  may  emancipate  all  or  any  portion  of  the  slaves 
within  her  limits,  concedes,  as  it  seems  to  me,  the  whole  case,  for  if  the  state  may 
emancipate,  must  she  not  have  the  power,  the  moment  the  slaves  are  brought  itiithiTi 
her  limits ;  for  they  are  then  within  her  territory  and  jurisdiction,  and  subject  to 
her  exclusive  power ;  and  if  a  state  may  not  thus  emancipate  as  soon  as  the  slaves 
are  landed,  must  she  wait  for  days  or  years,  or  who  is  to  prescribe  the  time  when 
the  state  laws  shall  begin  to  operate,  or  the  number  of  slaves  that  shall  be  embraced 
within  the  provision,  whether  it  shall  include  the  anti  nati  or  post  nati,  or  extend 
only  to  those  that  may  be  hereafter  introduced,  or  include  also  all  those  already  in 
a  state;  and  no  one  will  deny,  that  if  to  emancipate  slaves  introduced  for  sale  be 
not  forbidden  by  the  commercial  power,  it  cannot  be  forbidden  by  that  power  to 
declare  the  sale  unlawful. 

We  have  seen  in  the  conrse  of  this  argument,  that  ten  of  the  twelve  states  which 
framed  the  constitution,  have  passed  laws,  many  of  them  cotemporaneous  with  the 


Ixxxviii 


Oroves  et  ah  v.  SlaugJUer* 


IV'-' 


I'l 


1- 


formation  of  the  conititution  or  almost  immediately  after,  prohibiting  the  intro  TtQ' 
tion  from  other  states,  of  slavei  for  »ii\>',  and  liave  enforced  these  Iiiwi.  That  ■-.  a- 
lar  proviiinna  )>  ve  been  made  in  eff\i  t  by  all  the  itatei  in  their  laws  or  unstitu- 
tions,  and  thai  -so  pruviitions  hiive  all  been  enforrnd,  that  the  iiu|ireui<  judinini 
li'ibunc.1  uf  evi'iv  rotate  (wheru  tliu  ({Uestion  haH  been  mai.'  )  \m\  e  again  and  again, 
during  a  period  uf  inore  tlian  fifty  yeurH,  declared  the^'  <.«  <  'lo  be  valid;  and  tliat 
Jhe  supreme  court  uf  llie  United  Suites  have,  a^.tiii  an><  ..^.ua,  unanimously  recog- 
nised their  constitutionuliiy,  iind  carried  them  into  execution;  that  at  least  six  of  the 
new  states  have  athrnied  in  their  miititiiiitidiiM  the  power  to  puns  those  laws,  and 
that  congress  (sometiincH  by  an  iinunimouM  vote)  liiive  oij  all  these  ocuucnans,  com> 
mencing  in  1792,  and  teiininaling  in  183<),  conceded  lliiii  these  constitutions  affirm- 
ing this  power,  were  "  not  repugnant  to  the  constitution  of  the  United  Slates." 

Does  not  all  this  settled  action  of  all  the  departments  of  the  governments  of  the 
states,  and  of  the  United  States  fix  tiie  construction  of  the  constitution  in  this 
respect,  and  leave  it  no  longer  ■<\  i  open  question  for  the  investigation  of  this  court. 
This  court  have  declared  that  "  a  cotemporary  exposition  of  the  constitution  prac- 
tised and  acquiesced  under  for  a  period  of  years,  tixes  the  construction,  and  the 
eowtg  will  not  shake  or  control  it."  1  Crancli  2!t!).  And  now,  will  this  court,  by 
a  si.igle  decree,  overthrow  liie  law  as  settled  for  more  than  fifly  years,  by  all  the 
de;jartment8  of  the  governmenta  of  the  states,  ami  of  the  ITnion?  If  hi,  it  must 
sacrifice  at  once  a  hecatomb  of  acts  and  decisions,  and  change  tlie  structure  of  the 
government  itself  It  w  uld  be  a  judicial  revolution,  more  sudden  and  overwhelm- 
ing in  itn  effects,  than  the  last  great  revolutions  in  France  and  England,  which 
were  little  more  than  changes  of  dynasty.  1  hove  called  it  a  revolution,  not  a  usur- 
pation ;  but  the  most  daring  usurper  ne  vrer  e.ffected  so  sudden  and  extensive  a  change 
in  the  civil  and  ^lolitical  rights,  and  settled  internal  policy  of  a  nation.  These  have 
been  generally  spared  by  conqueror.s  and  usurpers,  or  if  not  spared,  they  were  not 
subverted  by  a  single  decree,  to  be  at  once  proclaimed  and  executed.  But  here, 
the  moment  this  decree  shall  be  recorded,  the  revolution  will  have  commenced  and 
terminat  il.  and  this  court  will  reassemble  among  the  fragments  of  laws  subverted, 
and  d«"r:t*«Mini.  iverthrown.  Theconstitutionsof  six  of  the  states;  the  laws  of  all  upon 
this  3>  '>:''■.'.!,  ad  a  seTies  of  uninterrupted  judicial  decisions  for  more  than  half  a 
oeyUiUf,  wii'  be  at  once  obliterated.  With  them  will  fall  the  acts  of  convresi 
upon  Ujiq  question,  from  the  admission  of  the  first,  to  the  last  of  the  new  statei, 
and  many  >  )nfirmatory  decisions  of  this  tribunal.  This  decree  atTects  the  past,  the 
present,  and  the  future.  Reaching  back  to  1788,  it  annuls  all  the  state  laws  for- 
bidding the  introduction  of  slaves,  and  reinslaves  all,  and  the  descendants  of  all  that 
were  liberated  by  those  statutes.  And  all  this  is  to  be  effected  by  a  single  decree, 
no  time  allowed  to  prepare  for  the  mighty,  change,  but  it  is  to  be  the  work  of  an  in- 
stant. 

So  much  for  the  past  and  present,  and  now  for  that  dark  and  gloomy  future, 
when  this  court,  having  annulled  all  the  state  laws  on  this  subject,  shall  announce 
that  it  is  a  question  over  which  the  power  of  congress  is  supreme  and  exclusive. 
Could  tne  Union  stand  the  inif^hty  shock,  and  if  it  fell,  shall  we  look  upon  the  vic- 
tims of  anarchy  and  civil  war,  resting  wearied  for  the  night  from  the 'work  of  death 
and  desolation,  to  renew  in  the  morning  the  dreadful  conflict,'  Throwing  our  eyes 
across  the  Atlantic,  shall  we  behold  the  consequences,  when  the  overthrow  of  this 
Union,  this  second  fall  of  mankind,  shall  be  there  promulgated.''  Shall  we  there 
see  those  daring  men,  now  pleading  the  cause  of  self-government  around  the  thronee 
of  monarchs,  sink  despairing  from  the  conflict,  amid  the  shouts  of  tyrants  exulting 
over  the  prostrate  liberties  of  man.  And  who  can  expect  such  a  decree  ftom  this 
tribunal  ?  No,  this  court  will  now  prove,  that  however  passion  or  prejudice  may 
•way  for  a  time  any  other  department  of  this  government,  here  the  rights  of  eyery 
section  of  this  Union  are  secure.  And  when,  as  I  doubt  not,  all  shall  now  be 
informed,  that  over  the  subject  of  slavery,  congress  possesses  no  jurisdiction;  the 
power  of  agitators  will  expire,  and  this  decree  will  be  regarded  as  a  re-signing  and 
r^-sealing  of  the  constitution. 


^i 


\^- 


